Oregon virus rules reveals double standard

Consequences and Costs
By John DiLorenzo

This article provided by Oregon Transformation Newsletter.

What do these two actions have in common: 1) the recently concluded Linn County Timber Class Action trial, and 2) small business’ demand for compensation for lost property that was a direct result of the governor’s COVID crisis response? Neither challenges the government’s authority. Both accept the state’s mismanagement of the state forests and the governor’s responses to the COVID crises. Both are also efforts to remind elected and appointed officials that government policy decisions have consequences and carry with them economic costs.

Last November, a jury found that the state, by mismanaging the forests, breached a contract that dated back to the 1940s and awarded 160 rural counties and local governments approximately $1.1 billion as a consequence of those management decisions. Now, I am proud to represent three businesses who wish to file a class action on behalf of thousands of small main street business enterprises. They hope to have a similar opportunity to seek compensation as a consequence of Gov. Brown’s decision to deprive them of their property to further a public purpose.

Several months ago, legal observers were focused on Elkhorn Baptist Church v. Brown case, which challenged the governor’s authority to issue her emergency orders. Although the challenge ultimately failed, the Supreme Court held that the governor’s emergency powers were derived from a series of laws originally enacted during the 1950s to address the powers of the governor in time of war. The laws were then expanded in the 1980s to include additional types of emergencies, like pandemics, earthquakes and floods.

One of these laws requires: “When real or personal property is taken under power granted by ORS 401.188, the owner of the property shall be entitled to reasonable compensation from the state.”

The history of this compensation statute shows that legislators, at the time of adoption, made a purposeful election to require the state to compensate private parties for loss of real or personal property that they might suffer as a result of the governor exercising this executive authority, even in time of war. That is notable since general takings jurisprudence often carves an exception for emergency actions. But this compensation statute was specifically designed to apply in an emergency.

As a result of her orders, thousands of businesses closed as they were commanded to do, and thousands of workers found themselves without employment. The state has since addressed the unemployment created as a result of these orders by, at least theoretically, providing unemployment compensation to most displaced workers. And when she closed our public schools, Gov. Brown was careful to require the schools to maintain paychecks for their public employees. And most state workers continue to benefit from their compensation packages (and have even received raises) notwithstanding absence from their workplaces. At least for these favored groups, the governor has taken care to provide some level of compensation for the disruptions to their livelihoods.

Unfortunately, that has not been the case for the owners of thousands of local businesses the governor closed without any opportunity to show how they could safely operate pursuant to her Stay at Home Order. These small business owners were left to fend for themselves. Although some were able to avail themselves of temporary federal assistance, most lost business goodwill and value of their enterprises completely. For them, the choice Gov. Brown made meant economic disaster and deprivation of their property for a public purpose.

On Sept. 18, my clients demanded that the State correct these wrongs and make available reasonable compensation for their loss of property. They made clear that they do not challenge Gov. Brown’s statutory right to have issued her executive orders, nor do they second guess whether doing so was an appropriate response to the COVID-19 crisis. They do make clear, however, that although she took great care to protect some constituencies important to her, she left main street small businesses – the backbone of our state’s economy – to their own devices.

Shortly after the press noticed our letter, a supporter of the governor’s actions emailed me and said, “Really? You want to sue the governor for protecting lives?” To her and others who share that view, I suggest an analogy. If the government needs to bulldoze your house to make room for a pandemic treatment center, you might understand; but shouldn’t you be compensated for your loss?

We have invited the governor to engage if she is interested in avoiding litigation.

This article provided by Oregon Transformation Newsletter.