May 18, 2020 02:07 PM IN THE SUPREME COURT OF THE STATE OF OREGON Elkhorn Baptist Church, Calvary Chapel Newberg, Calvary Chapel Lincoln City, Calvary Chapel Southeast Portland, New Horizon Christian Fellowship, Camas Valley Christian Fellowship, Peoples Church, Prepare The Way, Bend Community Church, Covenant Grace Church, Jedidiah McCampbell, Ronald Ochs, Brian Nicholson, James B. Thwing, Mark Russell, Phil Magnan, Ronald W. Rust, Travis Hunt, Mason Goodknight, Mark Mayberry, Lori Mayberry, Benjamin Steers, Michael Carroll, Kevin J. Smith, Polly Johnson, Benjamin Boyd, Annette Lathrop, Andrew S. Atanasoff, Sherry L. Atanasoff, Micah Agnew and Angela Eckhardt, Baker County Circuit Court No. 20CV17482 Supreme Court No. S_______ DEFENDANTS’ EMERGENCY MOTION — STAY UNDER ORAP 7.35 Plaintiffs-Adverse Parties, v. Katherine Brown, Governor of the State of Oregon and Does 1 through 50, Defendants-Relators. Earlier today, the Baker County Circuit Court issued a preliminary injunction barring defendants, including Governor Kate Brown, from enforcing the Governor’s executive orders related to the COVID-19 pandemic. Defendants ask this court to stay that preliminary injunction immediately while Page 1 - DEFENDANTS’ EMERGENCY MOTION — STAY UNDER ORAP 7.35 BG2:bmg\10241004 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-4402 it considers their petition for a writ of mandamus vacating the injunction. This is an emergency motion because the preliminary injunction takes effect immediately and will allow the sort of large gatherings that are likely to spread the novel coronavirus that cases COVID-19—a fact that plaintiffs have not disputed in this litigation. To minimize that risk, defendants respectfully request at least a temporary stay while the court considers the motion no later than today, May 18, 2020. Because mandamus directed at a trial court is functionally appellate review of an interlocutory order, this court should consider the factors listed in ORS 19.350(3), which governs discretionary stays pending appeal. Those factors include, along with “any other factors the Court considers important” (ORS 19.350(5)): (a) The likelihood of the appellant prevailing on appeal. (b) Whether the appeal is taken in good faith and not for the purpose of delay. (c) Whether there is any support in fact or in law for the appeal. (d) The nature of the harm to the appellant, to other parties, to other persons and to the public that will likely result from the grant or denial of a stay. ORS 19.350(3). For the reasons explained at more length in defendants’ memorandum in support of the mandamus petition, this court should grant an immediate stay of Page 2 - DEFENDANTS’ EMERGENCY MOTION — STAY UNDER ORAP 7.35 BG2:bmg\10241004 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-4402 the preliminary injunction. First, defendants are likely to prevail in this mandamus proceeding. As defendants explained in their memorandum, the trial court committed fundamental legal error in concluding that the Governor’s emergency authority expired after 28 days, and the preliminary injunction is beyond the trial court’s discretionary authority. Second, defendants have sought mandamus in good faith and not for the purpose of delaying implementation of a valid court ruling. Third, for the reasons explained in the memorandum, there is support in law for the mandamus petition. Finally, and again as explained in the memorandum, the preliminary injunction threatens irreparable harm to the public health by undoing the state’s extensive efforts to slow the spread of COVID-19. The situation in Wisconsin highlights what could happen without an immediate stay. Last week the Wisconsin Supreme Court invalidated that state’s stay-at-home order. Wisconsin Legislature v. Palm, __ NW2d __, 2020 WL 2465677 (May 13, 2020). News reports indicate that just hours after the ruling, bars in the state were “packed wall to wall, standing room only,” while local health authorities “scrambled” in the “chaos” to institute new measures to “prevent[] more death.” Meagan Flynn, After Wisconsin court ruling, crowds liberated and thirsty descend on bars. ‘We’re the Wild West,’ Gov. Tony Evers says., Wash Post (May 14, 2020), available at Page 3 - DEFENDANTS’ EMERGENCY MOTION — STAY UNDER ORAP 7.35 BG2:bmg\10241004 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-4402 https://www.washingtonpost.com/nation/2020/05/14/wisconsin-bars-reopenevers/. This court should immediately stay the preliminary injunction to prevent the same chaos from being unleashed here tonight. Defendants orally requested a stay from the trial court on May 14 and 18, 2020; the trial court declined the request. Undersigned counsel notified counsel for plaintiffs and intervenors, Ray D. Hacke and Kevin L. Mannix, by e-mail that I would be moving for an emergency stay in this court. Plaintiffs object to the motion and intend to file a response. As of this filing I have not heard from intervenors’ counsel. This court should grant an immediate stay of the preliminary injunction pending the court’s consideration of defendants’ mandamus petition. Respectfully submitted, ELLEN F. ROSENBLUM #753239 Attorney General BENJAMIN GUTMAN #160599 Solicitor General /s/ Benjamin Gutman _________________________________ BENJAMIN GUTMAN #160599 Solicitor General benjamin.gutman@doj.state.or.us Attorneys for Relators Katherine Brown, Governor of the State of Oregon and Does 1 through 50 Page 4 - DEFENDANTS’ EMERGENCY MOTION — STAY UNDER ORAP 7.35 BG2:bmg\10241004 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-4402 NOTICE OF FILING AND PROOF OF SERVICE I certify that on May 18, 2020, I directed the original DefendantsRelators’ Emergency Motion — Stay Under ORAP 7.35 to be electronically filed with the Appellate Court Administrator, Appellate Records Section, by using the court's electronic filing system. I further certify that on May 18, 2020, I directed the DefendantsRelators’ Emergency Motion — Stay Under ORAP 7.35 to be served upon Ray D. Hacke attorney for plaintiffs, and Kevin L. Mannix, attorney for intervenors, by mailing a copy, with postage prepaid, in an envelope addressed to: Ray D. Hacke Attorney at Law PO Box 5229 1850 45th Ave NE, Suite 33 Salem, Oregon 97305 Kevin L. Mannix Attorney at Law 2009 State Street Salem, Oregon 97301 /s/ Benjamin Gutman _________________________________ BENJAMIN GUTMAN #160599 Solicitor General benjamin.gutman@doj.state.or.us Attorney for Relators Page 1 - NOTICE OF FILING AND PROOF OF SERVICE BG2:bmg\10241004 Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 378-4402