May 18, 2020 02:02 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’ MEMORANDUM IN SUPPORT OF 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
ARGUMENT ....................................................................................................... 2
A.

B.

The trial court erred as a matter of law in issuing a preliminary
injunction......................................................................................... 2
1.

A court may issue a preliminary injunction only if the
plaintiff makes a strong showing of a substantive right to
relief and the balance of hardships and public interest
favor an injunction. ............................................................... 2

2.

Plaintiffs have no legal basis for challenging the
executive order...................................................................... 5

3.

The trial court exceeded its discretion in issuing a
preliminary injunction during a pandemic............................ 8

This court should exercise its discretion to issue a writ of
mandamus because of the profound statewide importance of the
issue. .............................................................................................. 10

CONCLUSION.................................................................................................. 11

TABLE OF AUTHORITIES
Cases Cited
Bennett v. City of Salem,
192 Or 531, 235 P2d 772 (1951) ............................................................... 4
Gildow v. Smith,
153 Or App 648, 957 P2d 199 (1998) ....................................................... 3
Jewett v. Deerhorn Enters. Inc.,
281 Or 469, 575 P2d 164 (1978) ............................................................... 3
Josephine Cty. v. Garnier,
163 Or App 333, 987 P2d 1263 (1999) ..................................................... 3
State ex rel. Keisling v. Norblad,
317 Or 615, 860 P2d 241 (1993) ............................................................. 10
Winter v. Nat. Res. Def. Council, Inc.,
555 US 7, 129 S Ct 365, 172 L Ed 2d 249 (2008) ................................ 3, 4
i

 York v. Stallings,
217 Or 13, 341 P2d 529 (1959) ................................................................. 4
Constitutional and Statutory Provisions
Or Const, Art VII (amended), § 2 ...................................................................... 11
ORCP 79 A .......................................................................................................... 2
ORS 34.250........................................................................................................ 11
ORS 401.025(1) ................................................................................................... 6
ORS 401.165................................................................................................ 5, 6, 8
ORS 401.168(1) ............................................................................................... 5, 7
ORS 401.204........................................................................................................ 5
ORS 433.441 to 433.452.................................................................................. 5, 6
ORS 433.441(3)(d)....................................................................................... 5, 6, 7
ORS 433.441(4) ............................................................................................... 5, 6
ORS 433.441(5) ................................................................................................... 6
ORS 433.442(4) ................................................................................................... 6
ORS 443.441........................................................................................................ 6
ORS 443.441(4) ................................................................................................... 5
ORS chapter 401 .................................................................................. 2, 5, 6, 7, 8
ORS chapter 433 .................................................................................. 2, 5, 6, 7, 8
Other Authorities
Centers for Disease Control and Prevention,
How COVID-19 Spreads, at https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/how-covid-spreads.html .................................. 9
Centers for Disease Control and Prevention,
Symptoms of Coronavirus, at https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html.................................................... 9
Executive Order 20-07 (Mar. 17, 2020), available at
http://oregon.gov/gov/admin/Pages/eo_20-07.aspx .................................. 8
Executive Order 20-25 (May 14, 2020), available at
https://www.oregon.gov/gov/admin/Pages/eo_20-25.aspx....................... 9
ii

 Kaiser Family Foundation, Confirmed COVID-19 Cases and Deaths, at
https://www.kff.org/other/state-indicator/confirmed-covid-19-cases-anddeaths/ ...................................................................................................... 10

iii

 RELATORS’ MEMORANDUM IN SUPPORT OF PETITION FOR A
PEREMPTORY OR ALTERNATIVE WRIT OF MANDAMUS
_______________
INTRODUCTION
This court should immediately issue a writ of mandamus to vacate a
preliminary injunction that, if allowed to stand, sharply increases the risk that
Oregonians will be exposed to and contract COVID-19. The trial court committed
fundamental legal error in issuing the preliminary injunction, because plaintiffs’
arguments that the Governor lacks sufficient authority to address this emergency
have no merit. And even if they did, a preliminary injunction was outside the
range of permissible discretionary choices because the balance of hardship and
public interest weigh overwhelming against disturbing the Governor’s executive
orders. Plaintiffs do not dispute that public gatherings like those they seek to
convene are precisely the sort of events that are likely to increase transmission of
the virus that causes COVID-19. Rather they argue that particular features of the
relevant statutes make the particular orders invalid. Because these arguments are
fundamentally wrong and the court’s decision creates undisputed dangers, this
court should exercise its mandamus authority to protect the public health and allow
the Governor to oversee an orderly transition from the Stay Home, Stay Safe
executive order to less restrictive conditions.
At a minimum, this court should immediately stay the preliminary injunction
pending further proceedings in this court.

 2
ARGUMENT
A.

The trial court erred as a matter of law in issuing a preliminary
injunction.
The trial court issued a preliminary injunction barring defendants from

enforcing the executive orders while this case is pending. (ER 138–144). That
injunction was wrong for two reasons. First, the court committed fundamental
legal error in determining that the Governor’s emergency powers under ORS
chapter 401 are time-limited to 28 days based on provisions in ORS chapter 433.
Second, the court’s decision to issue a preliminary injunction fell outside the range
of permissible discretionary choices for the trial court. Either reason alone
warrants vacating the preliminary injunction.
1.

A court may issue a preliminary injunction only if the plaintiff
makes a strong showing of a substantive right to relief and the
balance of hardships and public interest favor an injunction.

A preliminary injunction is never a matter of right, and it always requires a
strong showing that the plaintiff has a valid substantive claim. Under ORCP 79 A,
a preliminary injunction “may” be allowed if the plaintiff is “entitled to relief”
demanded in the pleading and would suffer injury during the litigation or if the
defendant is violating the plaintiff’s rights in a manner that would “render the
judgment ineffectual”:
A(1) Circumstances. Subject to the requirements of Rule 82 A(1), a
temporary restraining order or preliminary injunction may be allowed
under this rule:
A(1)(a) When it appears that a party is entitled to relief demanded in
a pleading, and such relief, or any part thereof, consists of restraining
the commission or continuance of some act, the commission or

 3
continuance of which during the litigation would produce injury to the
party seeking the relief; or
A(1)(b) When it appears that the party against whom a judgment is
sought is doing or threatens, or is about to do, or is procuring or
suffering to be done, some act in violation of the rights of a party
seeking judgment concerning the subject matter of the action, and
tending to render the judgment ineffectual.
Because there is little appellate precedent addressing preliminary
injunctions, which generally are not appealable, it is appropriate to look to the
principles governing permanent injunction. Cf. Winter v. Nat. Res. Def. Council,
Inc., 555 US 7, 32, 129 S Ct 365, 172 L Ed 2d 249 (2008) (“The standard for a
preliminary injunction is essentially the same as for a permanent injunction with
the exception that the plaintiff must show a likelihood of success on the merits
rather than actual success”) (citation omitted). Injunctive relief is an
“extraordinary remedy” that should be granted sparingly. Jewett v. Deerhorn
Enters. Inc., 281 Or 469, 473, 575 P2d 164 (1978). In determining whether to
exercise their discretion to award this extraordinary relief, Oregon courts apply
traditional equitable factors. First, “clear and convincing proof” on the merits is
required. Jewett, 281 Or at 473. Second, the party seeking an injunction must
show that “irreparable harm” will occur and that “there is no adequate legal
remedy.” Gildow v. Smith, 153 Or App 648, 653, 957 P2d 199 (1998); Josephine
Cty. v. Garnier, 163 Or App 333, 336–37, 987 P2d 1263 (1999) (“proof
of irreparable harm is a prerequisite of injunctive relief generally”). Third, courts
consider the “relative hardship likely to result to the defendant if the injunction is

 4
granted and to the plaintiff if it is denied.” York v. Stallings, 217 Or 13, 23-25, 341
P2d 529 (1959). Finally, courts consider the public interest. Bennett v. City of
Salem, 192 Or 531, 546, 235 P2d 772 (1951) (“[T]here are situations where
the public interest would be so seriously affected by the issuance of
an injunction that the court will deny an application therefor.”).
Similar principles govern preliminary injunctions in federal court. Under the
federal standard, as in Oregon, preliminary injunctive relief is an “extraordinary
remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter, 555 US at 22. A plaintiff seeking a preliminary injunction
“must establish” four factors, which essentially mirror the equitable factors applied
by Oregon courts in the permanent injunction setting: (1) a likelihood of success on
the merits, (2) likely irreparable harm in the absence of preliminary relief, (3) that
the balance of equities tips in his favor, and (4) that an injunction is in the public
interest. Id. at 2.
Thus, although a trial court has some discretion to decide whether to issue a
preliminary injunction, that relief is inappropriate as a matter of law unless the
plaintiffs makes a sufficiently strong showing that (1) the plaintiff will likely
prevail in the litigation; (2) the plaintiff is likely to suffer irreparable harm without
a preliminary injunction; (3) that harm outweighs any harm that a preliminary
injunction will cause to the defendant; and (4) the public interest favors a
preliminary injunction.

 5
2.

Plaintiffs have no legal basis for challenging the executive order.

Plaintiffs did not establish the threshold requirement for a preliminary
injunction against the executive orders: a meritorious legal claim that would
invalidate those orders. The trial court committed fundamental legal error in
concluding otherwise.
The Governor declared a state of emergency statewide under ORS 401.165.
(ER 31). That declaration gave her the power to exercise “all police powers vested
in the state by the Oregon Constitution.” ORS 401.168(1). It also allowed her to
“implement any action authorized by ORS 433.441 to 433.452,” which includes
the power to “[c]ontrol or limit entry into, exit from, movement within and the
occupancy of premises in any public area subject to or threatened by a public
health emergency.” ORS 433.441(3)(d), (4). Those powers gave the Governor
ample authority to issue the executive orders challenged here, including the Stay
Home, Stay Safe order. And there is no time limit fixed by statute on a state of
emergency declared under ORS 401.165; it continues until it is terminated by the
Governor or the legislature. ORS 401.204.
The trial court erred in finding that the Governor’s emergency powers under
ORS chapter 401 are time-limited by the provisions of ORS chapter 433. (ER 41–
42). The provisions for public-health emergencies in chapter 433 supplement
rather than supplant the Governor’s powers under chapter 401. ORS 443.441(4)
states, “Nothing in ORS 433.441 to 433.452 limits the authority of the Governor to

 6
declare a state of emergency under ORS 401.165. If a state of emergency is
declared as authorized under ORS 401.165, the Governor may implement any
action authorized by ORS 433.441 to 433.452.” The Governor did not declare a
public health emergency under ORS 443.441; she declared a state of emergency
under ORS 401.165. (ER 31). Thus, while she had the authority to implement
actions authorized by chapter 433—including controlling the movement of the
public under ORS 433.441(3)(d)—she was not limited by any of chapter 433’s
provisions governing the length of a state of emergency. The thing that expires
under ORS 433.441(5) is the “proclamation of a state of public health emergency.”
Under the trial court’s ruling, declarations under ORS 401.165 also must expire.
But limiting some declarations under ORS 401.165 to 28 days directly conflicts
with ORS 433.441(4)’ statement that “[n]othing in ORS 433.441 to 433.452 limits
the authority of the Governor to declare a state of emergency under ORS 401.165.”
Chapters 401 and 433 address different, although overlapping, problems.
Chapter 433 addresses public health emergencies that could include highly
contained, small-scale events. See ORS 433.442(4) (defining “Public health
emergency” to require significant actual or probable effects “in the affected
population”) (emphasis added). Chapter 401 involves much larger-scale
emergencies that threaten “widespread” loss of life or other consequences. ORS
401.025(1) (defining “Emergency”). It should not be surprising that the legislature
put time limits on the statute that might be invoked more frequently, but not on the

 7
statute for much more widespread (and therefore rarer) threats. Nor is it surprising
that the legislature allowed the Governor to exercise all of her powers under the
statute for widespread threats through the duration of the emergency. Although the
trial court stated that the two statutes are “in conflict” with one another (ER 141),
they do not. The two statutes coexist and supplement each other.
And even if the authority to use chapter 433 powers during a chapter 401
emergency expired after 14 days—which it does not—that would not matter here.
Chapter 401 itself grants the Governor “all the police power vested in the state by
the Oregon Constitution.” ORS 401.168(1). That necessarily includes the
authority to control the movement of people to the extent needed to respond to a
public-health crisis, as ORS 433.441(3)(d) expressly confirms during a public
health emergency. In other words, if the Governor may constitutionally use that
power during a public health emergency, ORS 401.168(1) provides that she may
use the same power during a declared emergency under chapter 401—without
resort to chapter 433 whatsoever. Again, there is no conflict between the two
statutes.
Oregon law thus provides complementary sets of tools that the Governor can
use in an emergency: the more limited powers in a public health emergency
declared under chapter 433, and more expansive police powers during an
emergency declared under chapter 401. The legislature saw fit to place time limits

 8
on chapter 433, but not on chapter 401 powers. The trial court’s contrary
conclusion reflects a basic misunderstanding of how the statutes work together.
Plaintiffs’ legal arguments have no merit. The Governor had and has
statutory authority to issue, and continue, a state of emergency under ORS 401.165
due to the COVID-19 pandemic. For that reason alone, it was fundamental legal
error for the trial court to issue a preliminary injunction.
3.

The trial court exceeded its discretion in issuing a preliminary
injunction during a pandemic.

Even if plaintiffs’ claims had any merit, which they do not, the other factors
tip so decidedly against a preliminary injunction that it fell outside the trial court’s
range of discretionary choices.
First, whatever harm plaintiffs may experience if the executive orders
remain in force pales in comparison to the undisputed harm to the state and the
public if the orders are enjoined. The executive orders bar plaintiffs from holding
large gatherings or engaging in other non-essential activities that would require the
sort of close personal contact that presents the highest risk for disease transmission.
(ER 39–41); Executive Order 20-07 (Mar. 17, 2020), available at
http://oregon.gov/gov/admin/Pages/eo_20-07.aspx. They remain free to engage in
other activities, including holding worship services and other religious ceremonies
in small groups or though other appropriately distanced means, such as online or
drive-in services. While defendants do not minimize the difficulties that the
executive orders cause all Oregonians, those difficulties are not life-threatening.

 9
And the restrictions in those executive orders are already being lifted in many
Oregon counties, under a phased approach that takes into account the best available
data about what is safe. See Executive Order 20-25 (May 14, 2020), available at
https://www.oregon.gov/gov/admin/Pages/eo_20-25.aspx.
A preliminary injunction, by contrast, creates a renewed public-health crisis.
COVID-19 is a global pandemic. (ER 68). Plaintiffs do not dispute that the highly
contagious virus can be transmitted by asymptomatic carriers and does not
manifest itself until 2 to 14 days after exposure. See generally Centers for Disease
Control and Prevention, How COVID-19 Spreads, at
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html (visited May 15, 2020); Centers for Disease Control and Prevention,
Symptoms of Coronavirus, at https://www.cdc.gov/coronavirus/2019ncov/symptoms-testing/symptoms.html (visited May 15, 2020). The preliminary
injunction allows the very sort of large gatherings in which the virus is most likely
to be transmitted, a fact that plaintiffs have not disputed in this litigation. Plaintiffs
may be prepared to risk their own lives, but they do not dispute that the gatherings
also sharply increase the risk to others who come into contact with them.
Second, for the same reason, the public interest weighs heavily against a
preliminary injunction. Plaintiffs do not dispute that the Governor’s prompt
executive orders slowed the spread of COVID-19, and as a result Oregon has had
many fewer cases and deaths (both absolutely and per capita) than most states. See

 10
Kaiser Family Foundation, Confirmed COVID-19 Cases and Deaths, at
https://www.kff.org/other/state-indicator/confirmed-covid-19-cases-and-deaths/
(last visited May 14, 2020). The preliminary injunction undoes that work and
threatens to squander the enormous sacrifices Oregonians have made over the last
two months to protect the public health. The Governor has laid out a measured,
science-driven process for lifting restrictions county by county in a manner that
continues to protect the public health while returning to business as usual. See
Executive Order 20-25, supra. The blunt force of the preliminary injunction
upends that careful approach.
This is not a close case. No reasonable jurist could conclude that a
preliminary injunction is warranted in these circumstances. Whatever discretion a
court might otherwise have had here, a preliminary injunction like the one the
court issued was outside the range of permissible choices.
B.

This court should exercise its discretion to issue a writ of mandamus
because of the profound statewide importance of the issue.
Mandamus lies within this court’s discretion. But this case presents the sort

of extraordinary circumstances that warrant exercising that discretion. Mandamus
is the only means for defendants to obtain appellate review of the preliminary
injunction. See State ex rel. Keisling v. Norblad, 317 Or 615, 623, 860 P2d 241
(1993). It is an appropriate vehicle when the preliminary injunction is either based
on a “fundamental legal error” or “outside the permissible range of discretionary
choices open to the trial court.” Id. As explained above, the preliminary

 11
injunction here is both: It is based on fundamentally flawed legal challenges to
lawful executive orders, and it is beyond the trial court’s discretionary authority.
Defendants do not lightly invoke this court’s mandamus authority. But the
enormous stakes of this case justify that request. We are in a global pandemic, one
that Oregon has largely managed successfully. This court should not let one trial
court’s preliminary ruling unleash a renewed public-health crisis on the state.
CONCLUSION
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’
Memorandum in Support of 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 Memorandum
in Support of 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

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