Hubris - Oregon Health Authority told the Oregon Court of Appeals the Court cannot review any of Governor Kate Brown's Executive Orders

 

Op-Ed

The Hubris of Oregon Governor Brown & Brown’s Administrative State Agents

All Kate Brown ever gave were “nonmandatory recommendations”

 

September 29, 2021, OHA (Oregon Health Authority) told the Oregon State Appeals Court that the court had no authority to review any of Kate Brown's executive orders. The court reacted to that hubris.

Notice what the court wrote: “Without more, there are many reasons to question whether this guidance is, itself, an executive order…”.

Also: “And 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.”  

Then also: “…the current OHA guidance, issued on August 27, 2021, is limited to supplementing the rules with the OHA’s additional, nonmandatory recommendations…”

 

I am a thirteen-year former state government regulatory licensor/enforcer including representing the Department of Social and Health Services (DSHS) at administrative hearings (Washington State). After government service I have been an expert witness in superior court and also on government regulation in administrative hearings on behalf of licensed business owners and winning for them in my testimony of how the unelected government employees have little to no regard for laws passed by legislatures on behalf of the citizens of a state. Because state employees including supervisors are not trained on law these are mostly rogue folks operating out of their own character and personalities, and their own will to power, ineptness, and incompetence.

 

The majority of the ever-growing enlarging administrative state power over the citizen is because the citizen allowed it beginning in modern history in 1970 when the child welfare bureaucracies were put in place and we believed we had to open our doors to CPS (child protective services), answer any of their questions and let them have unsupervised access to our children to interview them without us being present and then increasingly took our children which amped up under Bill Clinton in1997 when the CPS door got opened to child sex trafficking.

Now Kate Brown and Jay Inslee use that model of obedience to authority with the faux COVID shutdowns of businesses, the public schools, and the hospitals. The shutdowns, in my opinion, are out of all these decades of hubris and they are now in free fall with these unconstitutional institutions of government, they are desperate for you not to see they are in free fall financially and operationally. All of this hiding of their free fall is supported by our mainstream Portland media companies covering for them. I’ve watched on the ground reporters from KATU and KOIN getting more stressed under this pressure to report all these faux news reports. 

 

In being an analyst/expert witness for law firms where I usually help them win the most, is by seeing what is not there. That’s where the truth lies.

 

The biggest thing the USA mainstream media is not covering while all of Europe since July 2021 at the Cannes Film Festival has seen Oliver Stone’s documentary, JFK Revisited: Through the Looking Glass, made after Stone went through the documents that President Donald J. Trump got declassified about the murder of President John F. Kennedy in 1963 and Americans are not now allowed to see it. Where I could find a link on the internet when I clicked on it, it was no longer there.

Cannes 2021: Oliver Stone revisits 'JFK' • FRANCE 24 English - YouTube

 

Stone’s analysis after all his research is CIA murdered JFK, then other government intelligence agencies, and various politicians, characters and the Warren Commission covered up the coup that happened in 1963, thus that secret and the cover up by these unelected entities, was the real conspiracy. Our father, Captain Gordon W. Logan, Sr was a US Army intelligence officer photo interpreter who worked with CIA, from 1960 to 1964, in West Germany (at age 17 dad had been with General George S. Patton’s 3^rd Army when they liberated the Buchenwald Concentration Camp).

 In father’s time in the military most military were Republicans. Father was a supporter of John F. Kennedy. In 2018 I met General Michael Flynn in St. Louis, Missouri. Reading General Flynn’s memoir, Flynn’s intelligence mentor in West Germany, was an intelligence officer who had worked with our father.

 St. Louis is also the US Army Records Center and I have been trying for years to get all my father’s and our family’s Army records. And I did get more. Dad didn’t retire voluntarily as we all believed. Dad kept to his top-secret security clearance, probably most to protect me (my brother had been killed in Vietnam), but over the years through other researchers and declassification documents, I know more of his history. 

 

Dad involved with Gary Francis Powers U2 flights (dad developed his films), Powers being shot down in 1960 (Jim Garrison's 1988 book disclosed Lee Oswald was stationed at a top secret base in Japan that had U2 planes six months before Powers was shot down), the prisoner exchange for Powers with Soviet spy Rudolph Abel (see Bridge of Spies with Tom Hanks), but not the Bay of Pigs (CIA did that without consulting Army intelligence in Europe), the building of the Berlin Wall, the Cuban Missile Crisis, the 1963 Auschwitz trials all formed my brother's and my childhood in West Germany.

 

Knowing Dr. Josef Mengele, that horror of a doctor who did ghastly experiments on children with a fetish for twins, the US Army and German government, knowing Mengele was flying in and out of Frankfurt airport to visit his family in Bavaria, both could have arrested Mengele and they did not, then finally the killing of JFK formed our growing up years in West Germany, the legacy secrets left into our family. Always on high alert. Robert F. Kennedy, Attorney General, toured our Post one year. We were told to go out and see him as his staff car drove through. There were only five of us. He was standing in his staff car as he drove by. An adult made a caustic remark.

 

Heidelberg was the headquarters for Army intelligence in Europe and with all the pomp, circumstance, ceremony, and protocols of military life, we had no memorial service for our assassinated president. 

 

I remember dad showing up with a Mauser rifle one day, telling us it was a German Mauser; we never shot it at the Rod and Gun Club like we did our .22 rifle and his .45; and the Mauser never made it back stateside with us. Declassified documents identified a Mauser at the Dallas, Texas Book Depository that then was never seen again, it disappeared.

Before dad died young (age 56) I knew his disgust with CIA.  As father slowly transitioned out of this life, we watched the news on TV, where he showed me how to spot covert CIA activity. Father also taught me intelligence work wasn’t that hard. It’s about observation, intuition, non-verbal behavior, dress, knowing cultures, habits, patterns, history, etc. Still young at the time I didn’t realize how much I learned through osmosis from my father that formed and informed my investigation and analytical skills I used in a number of careers in my life to date.  

With the introductory history of my life formed by and from my father with a nod of respect to our father this leads me to my review of the Appeals Court decision in this lawsuit.

 

• OHA (Oregon Health Authority) told the court "guidance" was not an "administrative rule".

It is similar to a lawsuit in Washington State in 2020 against Governor Jay Inslee that when it got to court the governor said he could not “enforce” his suggestions.

 

In reviewing this lawsuit, OHA as part of their presentation to the appeals court, the AAG (assistant attorney general) with what some consider hubris, asserted Kate Brown's executive orders are “unreviewable" by the courts.  The appeals court presiding judge in her written commentary didn’t go along with the hubris coming from the AAG.

 

The petitioners' lawsuit (Chester Mooney, Shannan Pozzi, and Kevin Rubio vs OHA and Kate Brown) from the court's comments, the petitioners did not submit evidence of damages sustained by the petitioners about the "prior guidance" to assess that the “guidance” had any effect on "their rights".

 

This year and a half nightmare has largely occurred because citizens and businesses were simply believing and obeying the words of Kate Brown on TV, OHA suggestions and OSHA’s rules.

 

My state government duties in Washington State included doing that “rule making process”.  Rules cannot violate law.  The governors of both states hoped no citizen or business would actually look up the law, but instead, simply believe “rules”, “suggestions”, “guidance”, “mandates”, “requirements” were “law”.  If rules violate law, rules are “moot”.

 

Eleven months ago, I helped keep OSHA at bay from one business by the business simply asking OSHA in writing that in order to respond to OSHA’s complaint that the allegation was “your business is open”, the business needed in hard copy form the US Constitution, the Oregon Constitution, Federal Civil Rights laws, and Oregon law, and to have OSHA’s attorney highlight in yellow which laws and subsections of those laws that their business being “open” was in violation of law.

 

OSHA for almost eleven months now has not responded and has left them alone. The business is open, flourishing and is mask free.

 

As a state government employee for over twenty years, I know state government employees are not trained on the U.S. Constitution, the Oregon Constitution, Washington State Constitution, Bill of Rights, Oregon state law and Washington State law. I have documentation as well showing how these unelected government agencies like OHA and OSHA, flip off their state attorney general’s offices in emails if they don’t want to obey a law passed by the legislature. Thus the Oregon AAG’s hubris to flip off  in open court, the Appeals Court, told the Appeals Court it has no right to review Kate Brown’s executive orders.

 

Following is the complete decision by the Appeals Court on September 29, 2021. As an expert in regulatory government, my opinion, is most laws passed by the legislature are moot in that they violate Article IV Section 21 of the Oregon Constitution which is a “shall”, a “shall” that laws must be plainly worded, in other words so that anyone can read them.  Laws have gone too far Beyond the Pale that reading them is more an exercise like in the books of “Finding Waldo”. There will be link after link to this “rule” or then this “law” that to follow any of them you’d need to print, cut them out and get a big white board to assemble them on to then refer back to the original document and in this case the Appeals Court’s references in their decision.

 Here’s the decision, the bolding is mine.

“No. 707 September 29, 2021

809 IN THE COURT OF APPEALS OF THE STATE OF OREGON

Chester MOONEY, Shannan Pozzi, and Kevin Rubio, Petitioners, v. STATE OF OREGON, acting by and through the Oregon Health Authority, and Kate Brown, in her capacity as Governor and Chief Executive of the Oregon Health Authority, Respondents.

“Oregon Health Authority A174 30 0 Argued and submitted July 7, 2021. Tyler D. Smith argued the cause for petitioners. Also on the briefs was Tyler Smith & Associates,

P.C. Michael A. Casper, Assistant Attorney General, argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Shorr, Judge, and Kamins,

 Judge.LAGESEN, P. J. Petition dismissed.

810 Mooney v. Oregon Health Authority LAGESEN, P. J.

 On June 30, 2020, respondent, the Oregon Health Authority (OHA), issued a document, effective July 1, 2020, entitled “Statewide Mask, Face Shield, Face Covering Guidance.” In it, the OHA spelled out what turned out to be the first round in the ever-evolving face-covering guidance intended to protect Oregonians against the spread of the lethal and ever-evolving COVID-19 virus.

Believing the document to qualify as an administrative rule, as that term is defined by ORS 183.310, petitioners brought this proceeding under ORS 183.400, seeking to have the guidance invalidated.

The OHA responds that we lack jurisdiction over this proceeding for two reasons.

First, the OHA contends that the challenged guidance is not an administrative rule but “is instead part of an executive order lawfully issued by the Governor pursuant to her emergency powers.”

In support of this argument, the OHA notes that ORS 183.310(9)(e) excludes “[e]xecutive orders of the Governor” from the definition of a rule.

Second, the OHA contends that this proceeding is moot because the guidance has since been superseded.

Although we question the former point, we agree that this proceeding is moot and must be dismissed for that reason.

We assume without deciding that the guidance at issue is an administrative rule as defined by ORS 183.310. On its face, it appears to fit comfortably within the definition of a rule, at a minimum, as an “agency * * * statement of general applicability that implements * * * or prescribes law or policy * * *.” ORS 183.310(9).

The guidance also appears to have been issued by the director of the OHA and it prescribes a number of required and recommended practices related to the use of masks or other face coverings.

And 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 Cite as 314 Or App 809 (2021) 811 rule but, instead, an executive order, rests largely on the arguments of counsel. Without more, there are many reasons to question whether this guidance is, itself, an executive order (or part of an executive order), as distinct from a rule promulgated under the authority of an executive order. See, e.g., Western States Petroleum Assn. v. EQC, 296 Or App 298, 308-09, 439 P3d 459 (2019) (recognizing that the Administrative Procedures Act (APA) is not the only source of law that governs the promulgation of administrative rules and reviewing challenged rule for compliance with procedures external to the APA).

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.1 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.

That means this rule-review proceeding is moot under our case law. We long have held that the repeal or replacement of an administrative rule means an ORS 183.400 challenge seeking to invalidate the displaced rule is moot.

See Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010) (so holding); see also Hay v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (expiration of rule mooted ORS 183.400 challenge to the rule).

Although petitioners at oral argument urged us to conclude that this case was not moot because of pending enforcement proceedings under the now-supplanted guidance, we rejected a similar contention in Reid: “At oral argument, petitioners maintained that the case was not moot because the temporary rules have been applied to some disputed fee agreements that have not been resolved. That fact is not in the record, and, even if it were, nothing 1See https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2288K_R.pdf (last accessed Sept 8, 2021).

812 Mooney v. Oregon Health Authority in the record discloses that these petitioners are involved in such a dispute so that our resolution would have a practical effect on their rights.”235 Or App at 401 (emphases in original).

As was the case in Reid, the record before us contains no evidence regarding any ongoing enforcement proceedings or how, if at all, it would have a practical effect on these petitioners’ rights to resolve the issues about the validity of the prior guidance. Accordingly, as we did in Reid, we dismiss the petition. Petition dismissed.”

 

Can you see the game Kate Brown has played with citizens (except for the homeless population) and businesses? Her gaslighting? Her seemingly impulsive and frantic changing of the “rules”, telling citizens on TV so month after month, week after week or day after day…it looks like it was to this end. Since this lawsuit filed months ago, those rules were moot in court on September 29, 2021. The case simply is moot which means there’s no rule to talk about or decide upon.  Moot: “…having little or no practical relevance, typically because the subject is too uncertain to allow a decision…”

 

Nowhere in this court transcript is the emergency law addressed. My look at the law Kate Brown as a former government regulator who participated in state government “rule making” process, the governor never had the legal authority to shutdown every square inch of Oregon including the Pacific Ocean due to emergency law ORS 401.165(5) which captures emergency via geographic areas of the state, not the whole state and not political entities such as counties.

 

ORS 401.165 (5):

Any proclamation of a state of emergency must specify the geographical area covered by the proclamation. Such area shall be no larger than necessary to effectively respond to the emergency.

 

Administrative rules that violate law are moot. Kate Brown talking on TV, the public schools, the hospitals, OHA and OSHA, in my professional opinion, due to ORS 401.165(5) were moot from March 2020 to date, their rules, suggestions, guidance, requirements, mandates, etc, all are moot.

 

If President Trump did not have the authority to call in the National Guard about ending the violence in downtown Portland, Oregon his call for a national COVID emergency, he also had no authority over Kate Brown either. Kate never had, in my opinion, as a government regulator who represented state government at Administrative Hearings then in the years after government employment as an analyst/expert witness at Administrative Hearings and in Superior court civil cases, Kate Brown never had under the US Constitution, the Oregon Constitution, Federal Civil Rights Laws, the Bill of Rights and Oregon law to call for her emergency which now has turned into an unending “emergency” where now on average only 1500 people out of 4.2 million in Oregon die a year from this thing the government calls COVID.

1500 out of 4.2 million people in any cause of death in one year is not an emergency. 

Oliver Stone’s new documentary, JFK Revisited: Through the Looking Glass?  For Oregon it looks like we went Down the Rabbit Hole. If you read NEA: Trojan Horse in American Education by Samuel Blumenfeld you will learn that Oregon was first to sign onto “Let’s, make America into a socialist country!” It is no wonder we have the worst public schools in the nation. 

 Constitutional American Oregonians must self-educate now.  Scott Adams of Dilbert comic fame said in the beginning of 2021 that the biggest story the media is not covering is the collapse of the teachers’ unions and the public schools. Homeschooling and other educational options are surging. Get your kids out and we build proper education back into America. We save America by collapsing that system.

 

Oliver Stone recently announced he may have an American distributor so we may get to see JFK Revisited: Through the Looking Glass, hopefully soon.

 

My take is all the bad actors involved in the November 22, 1963, death of President John F. Kennedy, their House of Cards is falling apart. Let it. There has been an underground economy since the 1990s at least that I was aware of working as a government employee in Washington State and knowing about Oregon. 

 Homeschooling has surged and more Americans are protecting their children now. Look what gift we were given with the unintended consequences of the shutdown had Americans doing their own research thus getting un-indoctrinated from almost two centuries of compulsory government public school education. Once Americans see the truth, Americans cannot not unsee the truth.

Let the House of Cards fall.

October 29, 2021