May 18, 2020 01:56 PM

IN THE SUPREME COURT OF THE STATE OF OREGON
_______________
Elkhorn Baptist Church, Calvary Chapel Baker County Circuit Court
Newberg, Calvary Chapel Lincoln City, No. 20CV17482
Calvary Chapel Southeast Portland,
New Horizon Christian Fellowship,
Camas Valley Christian Fellowship,
Supreme Court No. S_______
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,
Plaintiffs-Adverse Parties,
v.
Katherine Brown, Governor of the State
of Oregon and Does 1 through 50,
Defendants-Relators.
_______________
RELATORS’ PETITION FOR A PEREMPTORY OR
ALTERNATIVE WRIT OF MANDAMUS
_______________

Continued…
5/20

 RAY D. HACKE #173647
Pacific Justice Institute
PO Box 5229
1850 45th Ave NE, Suite 33
Salem, Oregon 97305
Telephone: (408) 966-1072
Email: rhacke@pji.org
Attorney for Plaintiffs-Adverse Parties
KEVIN L. MANNIX #742021
Kevin L Mannix PC
2009 State Street
Salem, Oregon 97301
Telephone: (503) 364-1913
Email: kevin@mannixlawfirm.com

ELLEN F. ROSENBLUM #753239
Attorney General
BENJAMIN GUTMAN #160599
Solicitor General
1162 Court St. NE
Salem, Oregon 97301-4096
Telephone: (503) 378-4402
Email:
benjamin.gutman@doj.state.or.us
Attorneys for Defendants-Relators

Attorney for Intervenors-Adverse
Parties

5/20

 TABLE OF CONTENTS
INTRODUCTION ............................................................................................... 1
A.

Background ......................................................................................2

B.

This petition is timely.......................................................................3

C.

No further application to the circuit court is required......................4

D.

Defendants lack an adequate remedy in the ordinary course
of the law to address the trial court’s error. .....................................4

E.

Conclusion........................................................................................5

EXCERPT OF RECORD

TABLE OF AUTHORITIES
Cases Cited
State ex rel. Keisling v. Norblad,
317 Or 615, 860 P2d 241 (1993)................................................................4
State v. Peekema,
328 Or 342, 976 P2d 1128 (1999)..............................................................3
Constitutional and Statutory Provisions
Or Const, Art VII (amended), § 2.........................................................................5
Or Const, Art X-A ................................................................................................3
ORS 19.255(1) ......................................................................................................4
ORS 34.250...........................................................................................................5
ORS 401.025(1) ....................................................................................................2
ORS 401.025(1)(a)................................................................................................2
ORS 401.165(1) ....................................................................................................2
ORS 401.168(1) ....................................................................................................2
ORS 401.175(3) ....................................................................................................2
ORS 401.188.........................................................................................................2
ORS 401.204.........................................................................................................2
i

 RELATORS’ PETITION FOR A PEREMPTORY OR
ALTERNATIVE WRIT OF MANDAMUS
_______________
INTRODUCTION
Defendants-relators Governor Kate Brown and Does 1-50 (“defendants)
ask this court to issue a peremptory writ of mandamus directing the Baker
County Circuit Court to vacate the preliminary injunction it issued earlier today.
That injunction prohibits defendants from enforcing the executive orders the
Governor issued to slow the spread of the novel coronavirus that causes
COVID-19. Because the Governor had clear authority to issue those executive
orders to protect the public health in a global pandemic, the trial court exceeded
its authority in issuing the preliminary injunction. A writ of mandamus from
this court is the only available procedure to correct that error, and the
emergency caused by the injunction warrants this court’s immediate
intervention.
If this court does not immediately issue a peremptory writ, it should at
least stay the preliminary injunction and issue an alternative writ directing the
trial court to vacate the injunction or show cause for not doing so. An
immediate stay is needed to stop the threat to public health that the preliminary
injunction created.

 2
A.

Background
ORS 401.165(1) gives the Governor the power to “declare a state of

emergency * * * after determining that an emergency has occurred or is
imminent.” An “emergency” includes a “natural event or circumstance that
causes or threatens widespread loss of life, injury to person or property, [or]
human suffering,” including “disease.” ORS 401.025(1), (1)(a). Other
provisions of the emergency-management statute give the Governor additional
authority during a declared emergency, such as the authority to exercise all
police powers of the state, to limit travel on public roads, and to manage the use
of resources. ORS 401.168(1); ORS 401.175(3); ORS 401.188. The state of
emergency continues until it is terminated either by the Governor or by joint
resolution of the legislature. ORS 401.204.
In March, Governor Kate Brown declared a statewide emergency because
of the threat to public health and safety created by the novel coronavirus that
causes COVID-19. (ER 31–33). COVID-19 causes respiratory damages
leading to serious illness or death. (ER 31). The virus “spreads person-toperson” through, among other things, “close personal contact.” (ER 31). To
slow the virus’s transmission, the Governor used her emergency powers to issue
several executive orders, including the “Stay Home, Save Lives” order that
banned non-essential social gatherings, closed certain businesses where close

 3
personal contact is difficult to avoid, and required social distancing in other
businesses and workplaces. (ER 37–44).
The Governor originally set the state of emergency to expire after 60
days. (ER 33). In May, she extended it for another 60 day, through July 6,
2020. (ER 53). The legislature has not terminated the state of emergency
through a joint resolution.
Plaintiffs sued in Baker County Circuit Court to invalidate the executive
orders, asserting that Article X-A of the Oregon Constitution limits any state of
emergency declared by the Governor to 30 days. (ER 1–26 [Second Amended
Complaint]). They sought a temporary restraining order enjoining defendants
from enforcing the executive orders. (ER 98). The trial court held a hearing on
May 14, 2020, and on May 18, 2020, it granted a preliminary injunction barring
enforcement of the executive orders. (ER 138–144). The court concluded that
the Governor’s emergency powers under ORS chapter 401 expired after 28 days
based on the time limit in ORS chapter 433 governing declarations of publichealth emergencies.
B.

This petition is timely.
The trial court entered an order granting a preliminary injunction on May

18, 2020. The petition is timely because defendants filed it within 30 days of
entry of that order. See State v. Peekema, 328 Or 342, 346, 976 P2d 1128
(1999) (the timeliness of a mandamus petition is governed by laches, but a

 4
petition ordinarily is timely if filed “within the statutory time limitation required
for filing an appeal”); ORS 19.255(1) (notice of appeal must be filed within 30
days of entry of judgment).
C.

No further application to the circuit court is required.
The trial court in this case has already considered and rejected the legal

position advanced by defendants in this petition and its accompanying
memorandum. Presenting those arguments to the trial court again would serve
no purpose.
D.

Defendants lack an adequate remedy in the ordinary course of the
law to address the trial court’s error.
Mandamus jurisdiction is appropriate in this case because it is the only

way to obtain timely appellate review of the preliminary injunction. This court
has recognized that, because preliminary injunctions generally are interlocutory
orders and not appealable, mandamus is the proper vehicle to review those
injunctions. State ex rel. Keisling v. Norblad, 317 Or 615, 623, 860 P2d 241
(1993). Although mandamus may not be used to review the trial court’s
exercise of discretion in issuing a preliminary injunction, this court can review
whether there was a “fundamental legal error” underlying its exercise of
discretion and whether it acted “outside the permissible range of discretionary
choices open to the trial court.” Id.

 5
E.

Conclusion
For the reasons explained in defendants’ accompanying memorandum,

this court should exercise its original mandamus jurisdiction in this matter
under Article VII (amended), section 2, of the Oregon Constitution and ORS
34.250. This court should issue a peremptory writ of mandamus directing the
circuit court to vacate its preliminary injunction. Alternatively, this court
should immediately stay the injunction and issue an alternative writ of
mandamus directing the trial court to vacate the injunction or to show cause for
not doing so.

Respectfully submitted,
ELLEN F. ROSENBLUM
Attorney General

/s/ Benjamin Gutman
_________________________________
BENJAMIN GUTMAN #160599
Solicitor General
benjamin.gutman@doj.state.or.us
Attorneys for Defendants-Relators
Katherine Brown, Governor of the State
of Oregon and Does 1 through 50

 NOTICE OF FILING AND PROOF OF SERVICE
I certify that on May 18, 2020, I directed the original Relators’ Petition
for A Peremptory or Alternative Writ of Mandamus to be Electronically Filed
with the Appellate Court Administrator, Appellate Records Section, by using
the electronic filing system.
I further certify that on May 18, 2020, I directed the Relator’s Petition for
Peremptory Writ of Mandamus to be served upon Ray D. Hacke attorney for
adverse parties, and Kevin L. Mannix, attorney for intervenors, by mailing a
copy, with postage prepaid, in an envelope addressed to:
RAY D. HACKE #173647
Pacific Justice Institute
PO Box 5229
1850 45th Ave NE, Suite 33
Salem, Oregon 97305

KEVIN L. MANNIX #742021
Kevin L Mannix PC
2009 State Street
Salem, Oregon 97301

/s/ Benjamin Gutman
_________________________________
BENJAMIN GUTMAN #160599
Solicitor General
benjamin.gutman@doj.state.or.us
Attorney for Defendants-Relators

BG2:bmg/10242900