Elkhorn Baptist Church, an Or. Nonprofit Corp. v. Brown

• Decision Date: 12 June 2020
• Docket Number: SC S067736
• Citation: 466 P.3d 30,366 Or. 506
• Parties: ELKHORN BAPTIST CHURCH, an Oregon nonprofit corporation; Calvary Chapel Newberg, an Oregon nonprofit corporation; Calvary Chapel Lincoln City, an Oregon nonprofit corporation; Calvary Chapel Southeast Portland, an Oregon nonprofit corporation; New Horizon Christian Fellowship, an Oregon nonprofit corporation; Camas Valley Christian Fellowship, an Oregon nonprofit corporation; Peoples Church, an Oregon nonprofit corporation; Prepare The Way, an Oregon nonprofit corporation; Bend Community Church, an Oregon nonprofit corporation; Covenant Grace Church, an Oregon nonprofit corporation; Jedidiah McCampbell, an individual; Ronald Ochs, an individual; Brian Nicholson, an individual; James B. Thwing, an individual; Mark Russell, an individual; Phil Magnan, an individual; Ronald W. Rust, an individual; Travis Hunt, an individual; Mason Goodknight, an individual; Mark Mayberry, an individual; Lori Mayberry, an individual; Benjamin Steers, an individual; Michael Carroll, an individual; Kevin J. Smith, an individual; Polly Johnson, an individual; Benjamin Boyd, an individual; Annette Lathrop, an individual; Andrew S. Atansoff, an individual; Sherry L. Atansoff, an individual; Micah Agnew, an individual; and Angela Eckhardt, an individual, Plaintiffs-Adverse Parties, and Red Rock Cowboy Church, an Oregon nonprofit corporation, et al., Plaintiffs, and Bill Harvey, Sam Palmer, Glenn Palmer, Jerry Shaw, Matthew R. Cunningham, Donald A. Jay, Jacoe A. Brown, Samuel N. Brown, Virginia Stegemiller, B. David Hurley, and Douglas W. Hills, Intervenors-Adverse Parties, v. Katherine BROWN, Governor of the State of Oregon, and Does 1 through 50, Defendants-Relators.
• Court: Oregon Supreme Court

366 Or. 506

466 P.3d 30

ELKHORN BAPTIST CHURCH, an Oregon nonprofit corporation; Calvary Chapel Newberg, an Oregon nonprofit corporation; Calvary Chapel Lincoln City, an Oregon nonprofit corporation; Calvary Chapel Southeast Portland, an Oregon nonprofit corporation; New Horizon Christian Fellowship, an Oregon nonprofit corporation; Camas Valley Christian Fellowship, an Oregon nonprofit corporation; Peoples Church, an Oregon nonprofit corporation; Prepare The Way, an Oregon nonprofit corporation; Bend Community Church, an Oregon nonprofit corporation; Covenant Grace Church, an Oregon nonprofit corporation; Jedidiah McCampbell, an individual; Ronald Ochs, an individual; Brian Nicholson, an individual; James B. Thwing, an individual; Mark Russell, an individual; Phil Magnan, an individual; Ronald W. Rust, an individual; Travis Hunt, an individual; Mason Goodknight, an individual; Mark Mayberry, an individual; Lori Mayberry, an individual; Benjamin Steers, an individual; Michael Carroll, an individual; Kevin J. Smith, an individual; Polly Johnson, an individual; Benjamin Boyd, an individual; Annette Lathrop, an individual; Andrew S. Atansoff, an individual; Sherry L. Atansoff, an individual; Micah Agnew, an individual; and Angela Eckhardt, an individual, Plaintiffs-Adverse Parties,andRed Rock Cowboy Church, an Oregon nonprofit corporation, et al., Plaintiffs,andBill Harvey, Sam Palmer, Glenn Palmer, Jerry Shaw, Matthew R. Cunningham, Donald A. Jay, Jacoe A. Brown, Samuel N. Brown, Virginia Stegemiller, B. David Hurley, and Douglas W. Hills, Intervenors-Adverse Parties,

v.Katherine BROWN, Governor of the State of Oregon, and Does 1 through 50, Defendants-Relators.

SC S067736

Supreme Court of Oregon.

Submitted on the briefs June 3, 2020.

June 12, 2020

Ray D. Hacke, Pacific Justice Institute, Salem, filed the brief for plaintiffs-adverse parties.

Kevin L. Mannix, Salem, filed the brief for intervenors-adverse parties.

Benjamin Gutman, Solicitor General, Salem, filed the brief for defendants-relators. Also on the brief was Ellen F. Rosenblum, Attorney General.

Aruna A Masih, Bennett Hartman, Attorneys at Law, LLP, Portland, filed the brief on behalf of amicus curiae Oregon Nurses Association. Also on the brief was Thomas K. Doyle, General Counsel, Oregon Nurses Association, Tualatin.

Luke D. Miller, Military Disability Lawyer, LLC, Salem, filed the brief on behalf of amicus curiae New Civil Liberties Alliance.

Paul Janzen, Janzen Legal Services, LLC, Beaverton, filed the brief on behalf of amicus curiae Kelly Barnett.

Before Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.^**

PER CURIAM

This case comes to this court during a pandemic. As we all know, a novel coronavirus was first detected in late 2019, and it has spread rapidly across the globe, killing hundreds of thousands of people. Even more people have fallen ill, and healthcare systems in cities around the world have been overwhelmed, including in the United States. As the virus has spread, government leaders have taken actions to protect people in their jurisdictions from illness and death. They have done so in constantly changing circumstances, and they have responded to new information about the virus and its effects as it has become available. In this state, as in others, the Governor has issued executive orders to respond to the threat posed by the virus and the illness it causes, COVID-19. Because the virus spreads through close personal contact and through the air, some of the orders have restricted the size of gatherings and required that people maintain specified distances between themselves and others. Relatedly, other orders have closed schools and businesses. The restrictions have had substantial consequences for individuals and entire economies. It is unknown how long those consequences will last, just as it is unknown how long it will be before there is a cure or vaccine for COVID-19.

There have been and will continue to be debates about how best to respond to the threat posed by the coronavirus. Those debates include debates about what balance the government should strike between protecting lives and protecting liberties. To the extent that those debates concern policy choices, they are properly for policymakers. That is, those difficult choices must be made by the people's representatives in the legislative and executive branches of the government. As the United States Supreme Court stated more than a century ago, "It is no part of the function of a court * * * to determine which of two modes is likely to be the most effective for the protection of the public against disease." Jacobson v. Massachusetts , 197 U.S. 11, 30, 25 S. Ct. 358, 49 L. Ed. 643 (1905). Chief Justice Roberts reiterated that point less than a month ago, when he stated that " ‘the safety and health of the people’ " is principally entrusted to the states’ political leaders.

South Bay United Pentecostal Church v. Newsom , No. 19A1044, 590 U.S. ––––, ––––, 140 S. Ct. 1613, ––– L. Ed. 2d ––––, 2020 WL 2813056 at *1 (May 29, 2020) (Roberts, C.J., concurring) (quoting Jacobson , 197 U.S. at 38, 25 S.Ct. 358 ).

Of course, in our system of government, with its three separate branches structured to check and balance the powers of each other, the courts do have a role to play. That role is to determine whether the other branches have exceeded the legal limits on their authority. As the Supreme Court also stated in Jacobson , courts have the authority to intervene when political leaders attempting to protect the public against an epidemic act in "an arbitrary, unreasonable manner" or in a way that goes "far beyond what [is] reasonably necessary." 197 U.S. at 28, 25 S.Ct. 358. But, as Chief Justice Roberts recently observed, when political leaders " ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ " South Bay United Pentecostal Church , ––– U.S. at ––––, 140 S.Ct. 1613, 2020 WL 2813056 at *1, (Roberts, C.J., concurring) (quoting Marshall v. United States , 414 U.S. 417, 427, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974) ). "That is especially true where * * * a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground." ––– U.S. at ––––, 140 S.Ct. 1613, 2020 WL 2813056 at *2.

It is within that broader context—a global pandemic caused by a new and rapidly spreading virus, during which conditions change on a daily basis and significant restrictions have been imposed and caused economic harm—that this case comes to us. However, as in all cases, it is important to focus on the particular issue presented. And, in this particular case, at this particular time, the issue presented is narrow.

This case is a mandamus proceeding. It arises out of a civil action filed in Baker County Circuit Court. That action is still pending in the circuit court. In it, plaintiffs, Elkhorn Baptist Church and several other churches and individual churchgoers, challenge the executive orders that the Governor has issued in response to the coronavirus pandemic. Because a plaintiff's pleadings frame the issues before a court, it is necessary to be clear about what plaintiffs have alleged in their complaint. As detailed in our discussion below, 366 Or. at 521, 466 P.3d at 40–41, plaintiffs’ claim is that the Governor's orders have expired by operation of law.

In the underlying civil action, plaintiffs asked the circuit court for a preliminary injunction. A preliminary injunction is an extraordinary remedy. It is an order that is issued while a case is still being litigated. Here, plaintiffs asked the circuit court to enjoin the enforcement of the Governor's orders while their civil action is pending. They based their request on their claim that the orders have expired by operation of law. Among other things, they argued that the orders violated a statutory time limit.

The circuit court issued the requested preliminary injunction. It did so based on its conclusion that, as plaintiffs argued, the duration of the orders had exceeded a statutory time limit.

The Governor then filed a petition for a writ of mandamus, asking this court to vacate the preliminary injunction. In a mandamus proceeding, this court will order a circuit court to vacate a preliminary injunction if the circuit court based the preliminary injunction on a "fundamental legal error" or acted "outside the permissible range" of its discretion. State ex rel. Keisling v. Norblad , 317 Or. 615, 623, 860 P.2d 241 (1993). Thus, the particular issue in this case is whether the circuit court erred in taking the extraordinary action of issuing a preliminary injunction.

For the reasons explained below, the circuit court erred in concluding that the Governor's executive orders violated a statutory time limit as plaintiffs had argued. The circuit court's statutory analysis cannot be reconciled with the statutory text and context, and is directly at odds with how the legislature intended the statute to apply. The Governor issued the orders pursuant to ORS chapter 401, which authorizes the Governor to declare a state of emergency that continues until it is terminated either by the Governor or the Legislative Assembly. The orders are not subject to the statutory time limit on which plaintiffs relied, which is set out in ORS chapter 433. Because the circuit court's conclusion about the statutory time limit was fundamental to its issuance of the preliminary injunction, it is necessary to vacate the preliminary injunction.

I. HISTORICAL AND PROCEDURAL FACTS

A. The Executive Orders

In response to the pandemic, Governor Brown has issued 21 executive orders. In the orders, the Governor has exercised emergency powers granted by the legislature through statutes. The Governor issued her first executive order related to the coronavirus pandemic, Executive Order (EO) 20-03, on March 8, 2020. As mentioned, the coronavirus...