Under Pressure Kate Brown's AAG Blunders in Front of the Court
Appeals Court wrote OHA words are “nonmandatory recommendations”
Many Oregonians believe that Governor Kate Brown owns all the judges in Oregon.
September 29, 2021, OHA (Oregon Health Authority), assistant attorney general (AAG) told the Oregon State Appeals Court, that the court had no authority to review any of Kate Brown's executive orders. The court disagreed.
Notice what the court wrote: “Without more, there are many reasons to question whether this guidance is, itself, an executive order…”.
The court wrote: “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.”
The court wrote “…the current OHA guidance, issued on August 27, 2021, is limited to supplementing the rules with the OHA’s additional, nonmandatory recommendations…”
According to a former state government regulator and CPS investigator source the majority of the ever-growing enlarging administrative state power over the citizen is because citizens bent to it beginning in modern history in 1970 when the child welfare bureaucracies were put in place and parents believed they had to open their doors to CPS (child protective services), answer any of their questions and let them have unsupervised access to their children to interview them without parents being present, then increasingly under President Bill Clinton’s 1997 law when the CPS door got opened to child sex trafficking more children were taken. President Trump’s law to begin closing that door got enacted on October 1, 2019.
Kate Brown and Jay Inslee started using that CPS model of obedience to authority with the faux COVID shutdowns of businesses, the public schools, the hospitals, and the Pacific Ocean with the help of corporate media, including the Portland mainstream media feeding citizens, businesses and parents fear to gain unfettered compliance by simply speaking on TV and writing words on pieces of paper such as OHA's. “…non-mandatory recommendations…” as the Appeals Court called them on September 29, 2021.
Court of Appeals of the State of Oregon told OHA their guidance was not an "administrative rule" in the case before the court. The case was only dismissed for being “moot”. Moot is not a win for the governor or her administrative state.
The court’s analysis included OHA has had so many “changes” for over a year this particular lawsuit used a former guidance which no longer existed. Thus, there was nothing for the Appeals Court to rule on under law thus the case was “moot”, that’s the reason for the dismissal not that Kate Brown had won anything that day in court. By the court’s words of “…non-mandatory requirements…” no person in Oregon is under any law to obey them.
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.
AAG, Casper, asserting Kate Brown's executive orders are “unreviewable" by the courts showed Governor Brown's disrespect and hubris to the judicial system in Oregon.
The appeals court noted petitioners' lawsuit (Chester Mooney, Shannan Pozzi, and Kevin Rubio vs OHA and Kate Brown) from the court's comments, that 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 Oregon nightmare largely occurred because citizens, businesses and parents were and
some still are simply believing and obeying the words of Kate Brown on TV, OHA, OSHA words that change in a blink of an eye. Some call the many changes "gaslighting".
A former state government regulator noted that “Rules cannot violate law.” The governors of both states appear to hope that 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”.
One of many Oregon businesses who have kept OSHA at bay did so by simply asking OSHA in writing that 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 which laws?
OSHA has not responded (it now has been a year) and OSHA left those businesses alone. The businesses are open, flourishing and mask free.
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. Email documentation show state agencies telling their own AAGs that “no” they will not obey a law passed by the state legislature because the managers didn’t agree with that law.
Following is the complete decision by the Appeals Court on September 29, 2021. An expert in regulatory government opined 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 so far Beyond the Pale that reading them is more an exercise like in the book of Find Waldo.
There will be link after link to this “rule” then this “law” that to follow any of them you’d need to print out, cut them out and get a big white board to assemble them onto that board in chronological order then refer back to the original document, and as the Appeals Court’s references in their decision that Kate Brown and OHA have had so many recommendation changes this case was simply dismissed for being “moot”. A court can’t rule on something that isn’t a law.
Courts rule on law. Courts listen, review then rule on a case when a petitioner has been damaged under the law. Obeying a suggestion by the governor that is not law, where a business or citizen hasn’t been damaged isn’t what courts of law do.
Here’s the Appeals Court decision, the bolding is by the author.
“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.”
- Nowhere in this court transcript is the emergency law itself noted or addressed.
The seminal issue appears to be the governor never had the legal authority to shut down every square inch of Oregon including the Pacific Ocean due to emergency law ORS 401.165(5) which captures emergency can only exist via geographic areas of the state, not the whole state and not man made entities such as counties, towns, or cities.
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."
If the reader reads all of Kate Brown's executive orders one can tell the other emergencies she declared met ORS 401.165(5), but the March 8, 2020 one did not and has not from that date forward…rules, suggestions, guidance, requirements, recommendations, mandates, etc, all moot, they were all “…non-mandatory recommendations…”.
Brown declared an emergency based on "14 presumptive cases..." on March 8, 2020.
Now on average in Oregon only 1500 people out of 4.2 million die a year from this thing the government calls COVID. If the funeral homes TPNW contacted are accurate, with their expert take and observation on the issue of deaths, only 50% of those said to have died from COVID actually died from COVID then mathematically on average only 750 out of 4.2 million died on average each year.
OHA has been keeping a cumulative total not yearly totals, not average totals.
Going two years now into the governor’s unending edicts mathematically1500 deaths (or 750) on average out of 4.2 million people for any cause of death in one year is not an emergency.
Thus comes the unceasing questions from Oregonians why the shutdowns and lock outs done by government agencies, with the media being their mouthpiece and what’s with masking up children as no child has died in Portland, Oregon from this thing called “COVID”? No homeless have died either and no government agency is making them mask up.
Oregon's children have been traumatized.
Oregon looks like it went Down the Rabbit Hole early in our American history. NEA: Trojan Horse in American Education by Samuel Blumenfeld reported 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 are now getting their children out of the public schools and parents are self-educating.
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.
An inside source told TPNW recently 10% of students will not go into their classrooms and they are remaining in the halls. Passive resistance?
The teachers' unions are one of the biggest handlers/supporters of Kate Brown, public school board directors, superintendents and other elected officials.
The Oregon state administrative state apparatus appears to be in free fall and desperate thus the reason Governor Kate Brown’s AAG blurted out to the Appeals Court that the judicial system in Oregon cannot even review her executive orders.
Governor Kate Brown
went a bridge too far, her AAG blundered before the court, and her House of Cards is falling apart.
December 20, 2021
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