Fourteen months after the Freedom Foundation challenged Gov. Kate Brown’s unconstitutional mask mandate, the Oregon State Court of Appeals handed down its decision – dismissed.
However, that decision is a bit more nuanced than it appears on its face.
The Freedom Foundation made the argument that the original mask mandate, the so-called “Statewide Mask, Face Shield, Face-Covering Guidance,” implemented by Oregon Health Authority Director Patrick Allen on June 30, 2020, was, in fact, not an executive order, but an administrative rule.
Being an administrative rule, it was required to follow procedural standards prior to its implementation as outlined in ORS 183. These standards include notice of the proposed rule, 21 days advance notice to allow public input and a fiscal impact statement — all of which were absent from Dr. Allen’s guidance.
On this, the primary argument of the challenge, the Appellate Court agreed.
“…contrary to the OHA’s suggestion that the guidance is not a rule but, instead, part of an otherwise unreviewable executive order, there is nothing on the face of the guidance or in the record supplied to us by the OHA (which contains only the guidance itself) that would permit the conclusion that it is itself an unreviewable executive order of the governor. As petitioners point out, there is no indication that the guidance was filed with the Secretary of State, as executive orders are required to be. See ORS 183.355(5). Under these circumstances, the OHA’s claim that the guidance is not a rule but, instead, an executive order, rests largely on the arguments of counsel.”
In other words, it’s not an executive order just because the state’s attorney says it’s an executive order.
Unfortunately, it took the court more than a year to come to that conclusion. And since then, Oregonians have been subject to dozens of more executive orders and mandates — which routinely changed depending on the approved narrative from the White House or whatever mood the governor was in on morning of her infamous press conferences.
The court stated,
“Nevertheless, the guidance has been superseded on multiple occasions by subsequent guidance and now, administrative rules. As it stands, mask requirements are now governed by several administrative rules: OAR 333-019-1011; OAR 333-019-1015; and OAR 333-019-1025, and the current OHA guidance, issued on August 27, 2021, is limited to supplementing the rules with the OHA’s additional, nonmandatory recommendations. In other words, in more ways than one, we no longer inhabit the same world as we did at the time the OHA issued the guidance that petitioners have challenged.”
In a reasonable world, it would not take 14 months to decide a case that both parties define as an emergency.
Oregonians should be encouraged that our courts can still recognize blatant constitutional violations for what they are. And perhaps they should be enraged that the judicial system is operating at such an unacceptably slow pace that by the time they come to that conclusion there is nothing that can be done.
