Elkhorn Baptist Church v. Brown, 061220 ORSC, SC S067736

Docket Nº:SC S067736
Opinion Judge:PER CURIAM.
Party Name: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,...
Attorney:Submitted on the briefs June 3, 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 o...
Judge Panel:Before Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. GARRETT, J., concurring in the judgment. Balmer, J., joins in this opinion concurring in the judgment.
Case Date:June 12, 2020
Court:Supreme Court of Oregon

366 Or. 506 (2020)

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.

SC S067736

Supreme Court of Oregon

June 12, 2020

Submitted on the briefs June 3, 2020

[366 Or. 507] Original proceeding in mandamus CC 20CV17482. [*]

Submitted on the briefs June 3, 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.

[366 Or. 508] Paul Janzen, Janzen Legal Services, LLC, Beaverton, fled the brief on behalf of amicus curiae Kelly Barnett.

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

Case Summary:

Plaintiffs fled an action in Baker County Circuit Court seeking declaratory and injunctive relief with respect to the Governor's executive orders declaring a state of emergency based on the coronavirus pandemic and imposing various restrictions pursuant to that state of emergency. They also moved for issuance of a preliminary injunction enjoining enforcement of the orders while the case was being litigated. The circuit court granted the preliminary injunction, finding that plaintiffs ultimately would prevail on their theory that the executive orders had expired under, or violated, durational limitations on the Governor's authority to respond to public health emergencies under ORS 433.441 to 433.452. The Governor fled a petition in the Oregon Supreme Court for a writ of mandamus directing the circuit court to vacate the preliminary injunction or show cause why it had not done so. The Governor argued that, while the executive orders referred to powers described in ORS 433.441, the state of emergency had been declared under ORS 401.165, and states of emergency declared under that statute are not time limited but persist until terminated by the Governor or by joint resolution of the Legislative Assembly. The court issued an alternative writ of mandamus and, when the circuit court declined to vacate the preliminary injunction, accepted arguments from the parties about whether the preliminary injunction should stand.

Held:

The preliminary injunction must be vacated because the circuit court's decision to issue it was based on an erroneous proposition-that, although the Governor had declared the state of emergency under the broad provisions of ORS 401.165, her invocation of the powers specified in ORS 433.441 to 433.452 caused the state of emergency and orders issued thereunder to be subject to the time limitations that apply to states of emergency declared under ORS 433.441 to 433.451.

Peremptory writ of mandamus to issue immediately, in terms consistent with this opinion.

[366 Or. 509] 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. ___, ___ S.Ct. ___, ___ L [366 Or. 510] Ed 2d, 2020 WL 2813056 at *1 (May 29, 2020) (Roberts, C. J., concurring) (quoting Jacobson, 197 U.S. at 38).

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. But, as Chief Justice Roberts recently observed, when political leaders "'undertaken to act in areas fraught with medical and scientific uncertainties,' their latitude 'must be especially broad.'" South Bay United Pentecostal Church, 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." 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 corona-virus pandemic. Because a plaintiffs 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, plaintiffs' claim is [366 Or. 511] 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...

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