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.
CC 20CV17482; SC S067736
Supreme Court of Oregon
June 12, 2020
366 Or 506
Submitted on the briefs June 3; peremptory writ of mandamus to issue immediately, in terms consistent with this opinion June 12, 2020
Submitted on the briefs June 3; peremptory writ of mandamus to issue immediately, in terms consistent with this opinion June 12, 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.
(CC 20CV17482) (SC S067736)
466 P3d 30
Plaintiffs filed 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
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
Peremptory writ of mandamus to issue immediately, in terms consistent with this opinion.
Original proceeding in mandamus.*
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
Peremptory writ of mandamus to issue immediately, in terms consistent with this opinion.
Garrett, J., concurred in the judgment and filed an opinion, in which Balmer, J., joined.
PER CURIAM
This
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 US 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
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 US at 28. 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, 2020 WL 2813056 at *1, (Roberts, C. J., concurring) (quoting Marshall v. United States, 414 US 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 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, 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 P2d 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
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 was first detected in late 2019. In early 2020, the virus spread and caused outbreaks in Europe and the Middle East. Some of the first known cases in the United States were identified in January 2020 in Washington state, Oregon‘s neighbor to the north. EO 20-03 describes the circumstances that existed at that time. It states:
“As of March 8, 2020, there are 14 presumptive or confirmed coronavirus cases in Oregon, 430 cases in the United States, and 101,927 cases worldwide, in a total of 94 countries. In the United States, there have been 19 deaths, and worldwide there have been 3,468 deaths. On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization declared the outbreak a ‘public health emergency of international concern.’ On January 31, 2020, the Secretary of the U.S. Department of Human Services declared a public health emergency for the United States. Two counties in Oregon and several states also have declared states of emergency in response to the coronavirus outbreak, including California and Washington.”
The Governor issued EO 20-03 pursuant to
”
ORS 401.165 et seq. empowers the Governor to declare a state of emergency upon determining that an emergency has occurred or is imminent. Pursuant to that authority, I find that the novel infectious coronavirus has created a threat to public health and safety, and constitutes a statewide emergency underORS 401.025(1) .”
As discussed in greater detail below, 366 Or at 527-31, the declaration of a state of emergency pursuant to
A state of emergency declared pursuant to
EO 20-03 includes specific directions and orders to state agencies. Among other things, it states that the Oregon Health Authority
As the coronavirus spread across the country, the Governor issued additional executive orders. The threat posed by the virus was met with increasingly restrictive actions to protect the health and lives of Oregonians. On March 12, 2020, the Governor issued EO 20-05, which prohibited “large social, spiritual, and recreational gatherings of 250 people or more.” That order provided that the gatherings
“include, but are not limited to, community, civic, public, leisure, faith-based, and sporting events, concerts, conventions, fundraisers, and any similar events or activities, if a distance of at least three (3) feet between individuals cannot be maintained.”
On March 17, 2020, the Governor issued EO 20-07, which reduced the number of persons permitted at such gatherings to 25. EO 20-07 also prohibited the consumption of food and drink at restaurants and other similar establishments. Subsequent executive orders closed schools, required the postponement of elective and non-urgent medical procedures in order to conserve personal protective equipment, and imposed a temporary moratorium on residential evictions for non-payment of rent. See EO 20-08 (closing schools); EO 20-09 (suspending in-person instruction at higher education institutions); EO 20-10 (preserving personal protective equipment); EO 20-11 (imposing temporary moratorium on residential evictions).
On March 23, 2020, the Governor issued EO 20-12, designated as the “Stay Home, Save Lives” order. Among other things, EO 20-12 requires “social distancing” at non-essential social and recreational gatherings. It provides:
“Non-essential social and recreational gatherings of individuals outside of a home or place of residence (e.g., parties, celebrations, or other similar gatherings and events) are prohibited immediately, regardless of size, if a distance of at least six feet between individuals cannot be maintained.”
In addition to requiring social distancing at non-essential social and recreational gatherings, EO 20-12 orders the closure of certain businesses and imposes social distancing requirements on others.
Since the Governor issued EO 20-03, the coronavirus has continued to spread. The number of deaths in this country has grown from 19 on March 8, 2020, to more than 110,000, on June 8, 2020. See Johns Hopkins University, COVID-19 Dashboard, https://coronavirus.jhu.edu/map.html (accessed June 8, 2020). Worldwide, the number of deaths grew from 3,486 to more than 403,300 during that same period. Id.
The spread of the coronavirus has not been uniform. It has affected some areas more than others. In Oregon, 159 people have died from COVID-19 as of June 8, 2020. That number, while tragic, is relatively low. As plaintiffs themselves acknowledge, the Governor may deserve “a colossal amount of credit for keeping the death toll so low.”
However, the restrictions imposed by the Governor‘s executive orders have had an undeniable cost. Businesses have been shuttered and jobs have been lost. Oregon‘s unemployment rate rose from 3.5 percent in March 2020, to 14.2 percent in April 2020.1
Some of the Governor‘s executive orders address the economic ramifications of the restrictions imposed by other orders. As mentioned, one executive order imposes a temporary moratorium on residential evictions. EO 20-11. Another imposes a temporary moratorium on the termination of certain rental agreements. EO 20-13. A third protects federal relief payments from garnishment
As recounted above, the restrictions imposed in the executive orders have changed over time in response to changing circumstances. Previously, they were tightened; now, they are being loosened. On May 14, 2020, the Governor issued EO 20-25, to begin the process of reopening the state. That order established a three-phase process for reducing restrictions on a county-by-county basis. On June 5, 2020, the Governor issued EO 20-27, which further defines the phased reopening process and rescinds and
replaces EO 20-25. The process set out in EO 20-27 allows counties to move from phase to phase as they meet requirements related to their capacities to limit the spread of the coronavirus and care for those who fall seriously ill because of it.
B. The Underlying Civil Action
In the civil action that underlies this mandamus proceeding, plaintiffs filed a complaint, naming Governor Brown and other officials as defendants.2 Because a plaintiff‘s complaint frames the issues before a court, it is important to be clear about the claims that plaintiffs make in their complaint.3 Plaintiffs request two forms of relief: declaratory relief and injunctive relief. See
Plaintiffs acknowledge that, in her first executive order regarding the coronavirus pandemic, the Governor declared a state of emergency pursuant to
Article X-A of the Oregon Constitution concerns “catastrophic disasters” and provides that “the Governor may invoke the provisions of this Article if the Governor finds and declares that a catastrophic disaster has occurred.”
Relying on the 28-day maximum time limit in
Accordingly, in their prayer for relief at the conclusion of their complaint, plaintiffs ask the court to declare that all the Governor‘s executive orders issued in response to the coronavirus pandemic “have expired by operation of law.”5
After plaintiffs filed their complaint, a group of individuals, including local government officials, business owners, and churchgoers, filed a motion to intervene in the case, and the circuit court granted the motion. Intervenors filed their own complaint, in which they included their own statement of facts, but adopted all the other sections of plaintiffs’ complaint.
Plaintiffs sought a preliminary injunction to enjoin enforcement of the Governor‘s executive orders while their civil action is pending.6
“[w]hen 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 continuance of which during the litigation would produce injury to the party seeking the relief[.]”
ultimately prevail on the merits of its claim and whether, if the injunction is not issued, the party will be irreparably harmed during the litigation of the claim. State ex rel. v. Mart, 135 Or 603, 613, 283 P 459 (1931); City of Portland v. Baker, 8 Or 356, 365 (1880). Courts also balance the harm to the movant against harm to the opposing party and the public if the injunction is issued. State ex rel. v. Duncan, 191 Or 475, 500, 230 P2d 773 (1951); Booth-Kelly Lumber Co. v. Eugene, 67 Or 381, 384, 136 P 29 (1913).
Plaintiffs filed a memorandum in support of their request for a preliminary injunction. Regarding their entitlement to relief, plaintiffs again asserted that the Governor‘s executive orders violated the time limits in
It bears emphasizing that all the declarations that plaintiffs request in their complaint are based on their time-limit claims and that, when arguing for the preliminary injunction, plaintiffs argued that they were likely to succeed on those claims. Plaintiffs have not requested any declaration relating to whether the executive orders violate their constitutional rights to freely exercise their religion
or assemble,8 and they sought a preliminary injunction to enjoin the enforcement of all the orders, not only those that could affect their ability to practice their religion. As recounted above, the orders cover a range of subjects. Some concern medical responses to the pandemic; others concern economic issues, such as evictions and garnishments of relief funds.
The Governor objected to plaintiffs’ motion for a preliminary injunction, contending that the executive orders were issued pursuant to
On May 18, 2020, the circuit court issued an order granting plaintiffs’ motion for a preliminary injunction. As it explained in a letter opinion accompanying the order, the court based its ruling on its understanding of the interplay of the Governor‘s emergency powers under
authorizes, the court concluded that the orders were subject to the time limit in
The circuit court, however, rejected plaintiffs’ argument based on Article X-A, which allows the Governor to declare a catastrophic disaster. It explained that “the Governor was not required to invoke the provisions of Article X-A” because the article “clearly states
The circuit court then considered factors relevant to whether it should exercise its discretion to issue a preliminary injunction. First, the court concluded that, because plaintiffs had demonstrated that the Governor‘s executive orders had exceeded the 28-day time limit in
On the same day, the Governor filed a petition in this court, asking this court to issue either a peremptory writ of mandamus vacating the circuit court‘s preliminary injunction, or an alternative writ of mandamus ordering the circuit court either to vacate the preliminary injunction or to show cause why it was not required to do so.
After considering memoranda filed by plaintiffs and intervenors in opposition to the Governor‘s mandamus petition, this court issued an alternative writ of mandamus and allowed the parties to brief the issue of whether this court should issue a peremptory writ of mandamus. The circuit court chose to take no action regarding its disputed ruling, and this court has now received and reviewed the parties’ briefs, as well as briefs from amici curiae.9
II. ANALYSIS
The question before this court is whether to issue a peremptory writ of mandamus ordering the circuit court to vacate the preliminary injunction. As mentioned, this court may order a circuit court to vacate a preliminary injunction if the injunction was based on a “fundamental legal error” or if the circuit court acted “outside the permissible range” of its discretion. Keisling, 317 Or at 623.
A. ORS chapters 401 and 433
We begin with the question of whether the circuit court erred in concluding that the Governor‘s executive orders are subject to a 28-day time limit under
“[W]hen multiple statutory provisions are at issue in a case, this court, if possible, must construe those statutes in a manner that will give effect to all of them.” Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008) (internal quotation marks omitted). We are to avoid a construction that creates a conflict or renders one statute ineffective. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 83, 611 P2d 281 (1980). Instead, the statutes “should be read together and harmonized, if possible.” Powers, 345 Or at 438 (internal quotation marks omitted).
In the following sections, we review the statutes in
1. ORS chapter 401
We begin with the statutes in
has expressly authorized the Governor to declare a state of emergency in response to a disease.
Under
The term “police power” refers to “the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of the public.” Union Fishermen‘s Co. v. Shoemaker, 98 Or 659, 674, 193 P 476 (1920). The police power “extends to all the great public needs[.]” Christian et al. v. La Forge, 194 Or 450, 467, 242 P2d 797 (1952) (internal quotation marks omitted). “Public health is, of course, one of the important factors giving rise to the exercise of the police power[.]” State v. Hudson House, Inc. et al, 231 Or 164, 172, 371 P2d 675 (1962). The state may exercise its police power in many ways, including through “[i]nspection laws, quarantine laws, [and] health laws of every description[.]” State ex rel. v. Farmers Union Creamery, 160 Or 205, 214, 84 P2d 471 (1938) (quoting Nebbia v. New York, 291 US 502, 510, 54 S Ct 505, 78 L Ed 940 (1934) (internal quotation marks and citation omitted)). As the United States Supreme Court held in Jacobson, 197 US at 25, when affirming a city regulation requiring residents to be vaccinated
the protection of “the public health and the public safety.” Through the police power, a community can “protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. Thus, through the enactment of
Other statutes within
Although they are broad, the Governor‘s emergency powers under
The Governor‘s emergency powers under
the Governor to “terminate by proclamation when the emergency no longer exists, or when the threat of an emergency has passed.” Third, the Governor‘s emergency powers are limited in that they can be terminated by the legislature.
In addition, the Governor‘s emergency powers under
“[I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.”
Thus, when the Governor declares a state of emergency pursuant to
The Governor‘s emergency powers under
The legislature has provided that the rules and orders that the Governor issues pursuant to her emergency authority under
In sum,
Thus, the
2. ORS chapter 433
Like the Governor‘s authority to declare a state of emergency under
The statutes in
Thus, when faced with a public health emergency, the Governor may declare a state of emergency under
In addition, unlike an emergency declared under
Another provision in
“(a) During a declared state of public health emergency, the Public Health Director and local public health administrators shall be given immediate access to individually identifiable health information necessary to:
“(A) Determine the causes of an illness related to the public health emergency;
“(B) Identify persons at risk;
“(C) Identify patterns of transmission;
“(D) Provide treatment; and
“(E) Take steps to control the disease.
“*****
“(d) Upon expiration of the state of public health emergency, the Public Health Director or local public health administrators may not use or disclose any individually identifiable health information that has been obtained under this section. If a state of emergency that is related to the state of
public health emergency has been declared under ORS 401.165 , the Public Health Director and local public health administrators may continue to use any individually identifiable information obtained as provided in this section until termination of the state of emergency.”
(Emphasis added.) Thus,
One of the reasons that the
The original
When HB 2251 was before the Senate Human Resources Committee, Higginson explained to the committee that the Governor already had the power to declare a state of emergency under
In a later hearing before the House Health and Human Services Committee, Higginson explained that HB 2251 did not affect the Governor‘s ability to declare a state of emergency under
Indeed, the provisions of HB 2251 were premised on the understanding that the proclamation of a state of impending public health crisis pursuant to section 1 of the bill, now codified as
Thus, the emergency provisions set out in HB 2251 were intended to give the Governor an additional option for responding to an impending public health crisis, particularly one that is more limited in scope. Accordingly, HB 2251 included a durational limit on the proclamation of a state of impending public health crisis. It provided that such a proclamation “expires when terminated by a declaration of the Governor or no more than 14 days after the date it is proclaimed unless the proclamation is expressly extended for an additional 14-day period.” HB 2251, § 1(4).
But that time limit, which is now codified as
In 2007, the legislature amended the
Another purpose of HB 2185 was to establish, by statute, the position of the state Public Health Director. HB 2185, § 1; Exhibit B, Joint Committee on Emergency Preparedness and Ocean Policy, HB 2185, Mar 2, 2007 (summary of HB 2185 submitted by
HB 2185 also specified actions that the Governor could take during a declared public health emergency. It provided that the Governor could, among other things,
“Close, order the evacuation of or the decontamination of any facility the Governor has reasonable cause to believe may endanger public health ***
“*****
“Control 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 if such actions are reasonable and necessary to respond to the public health emergency.”
HB 2185, § 23. In doing so, the bill expanded the actions that the Governor could take upon declaring a public health emergency under
Notably, HB 2185 did not alter
In her testimony about HB 2185, when asked about the Governor‘s power to respond to an emergency, Allan explained—as Higginson had in 2003—that the Governor could exercise emergency powers under
To summarize: The legislature enacted the original
If the Governor proclaims a public health emergency pursuant to
Thus, the
3. The circuit court‘s ruling regarding ORS chapters 401 and 433
As recounted above, in the civil action that underlies this mandamus proceeding, the circuit court concluded that the Governor‘s executive orders violated the 28-day time limit in
Moreover, the Governor‘s emergency powers under
Thus, the circuit court‘s issuance of the preliminary injunction was based on a fundamental legal error. The court concluded that the Governor‘s executive orders had violated the 28-day time limit and, therefore, that plaintiffs were likely to succeed on the merits of their requests for declaratory judgment and injunctive relief. That was an erroneous legal conclusion.
B. Plaintiffs’ and Intervenors’ Alternative Arguments
Before closing, we address two alternative arguments that plaintiffs and intervenors raise in this court, one of which the circuit court expressly rejected and the other of which it did not address.
1. Article X-A, section 6(1)
In the circuit court, plaintiffs argued that the Governor‘s executive orders are subject to a 30-day limit under Article X-A, section 6(1), of the Oregon Constitution, and were null and void because that 30-day time period had expired. The circuit court rejected that argument, and, to the extent that plaintiffs are raising it in this court, we also reject it.
The Governor issued the executive orders pursuant to
As the circuit court noted, the Governor is not required to invoke her emergency powers under Article X-A, even if the circumstances would justify such an invocation. The terms of Article X-A itself make that clear. Article X-A provides that the Governor “may invoke the provisions of this Article if the Governor finds and declares that a catastrophic disaster has occurred.” Id. § 1(3) (emphasis added). Thus, invocation of the emergency powers set out in Article X-A is discretionary.
The powers granted by Article X-A are extraordinary, and the Governor may reasonably decline to invoke them. The emergency powers that arise from a declaration of a catastrophic disaster pursuant to Article X-A far exceed those that arise from a declaration of a state of emergency pursuant to
In sum, by its terms, Article X-A gives the Governor the option of invoking extraordinary powers in response to a catastrophic disaster and limits the time period during which those powers can be exercised, unless they are extended by the legislature. Nothing in the text of the Article X-A indicates that any part of Article X-A is intended to apply if the Governor does not declare a catastrophic disaster or invoke those extraordinary powers. To the contrary, the time limit is keyed to the invocation of the specific powers set out in sections 1 to 5 of the Article itself. Therefore, the text of the Article X-A establishes that its 30-day time limit applies to, and only to, the extraordinary powers described in sections 1 to 5 of Article X-A.
The legislative history of Article X-A confirms that conclusion. Article X-A was added to the constitution as a result of the voters’ approval of Ballot Measure 77 (2012), which the legislature referred to them through House Joint Resolution 7 in 2011. The ballot title for the measure highlighted that the measure would give the Governor discretionary authority to invoke powers that would override constitutional limits. The caption of the title described the major effects of the measure as follows:
“Amends Constitution: Governor may declare ‘catastrophic disaster’ (defined); requires legislative session; authorizes suspending specified constitutional spending restrictions.”
Official Voters’ Pamphlet, Marion County, General Election, Nov 6, 2012, 42. In addition, the summary of the measure explained that the Governor already had statutory emergency powers and that the measure would give the Governor constitutional emergency powers. The summary—which is statutorily limited to a specified number of words and, as a result, is terse—begins:
“Amends Constitution. Currently, Governor has statutory, but not constitutional, authority to declare state of emergency and direct response to emergency. Measure grants Governor constitutional authority to declare and respond to natural or human-caused ‘catastrophic disaster’ (defined).”
In sum, like its text, the legislative history of Article X-A shows that the article was intended to give the Governor an additional, separate tool for responding to certain types of emergencies. It was not intended to limit the Governor‘s authority under
In this case, plaintiffs acknowledge that the Governor‘s orders do not mention Article X-A, and they do not contend that the Governor has attempted to exercise any of the extraordinary emergency powers under sections 1 to 5 of Article X-A. Nevertheless, they contend that the Governor‘s order is subject to the 30-day limit of section 6(1) of Article X-A. As we understand it, plaintiffs’ position is that, any time that the Governor declares a state of emergency pursuant to
Intervenors make a different argument regarding Article X-A. They contend that, because Article X-A includes a 30-day limit for catastrophic disasters,
2. Freedom of religion
Plaintiffs’ arguments before the circuit court and before this court have focused primarily on the idea that the Governor‘s executive orders have expired and, therefore, are null and void. However, before this court, they have also argued that the orders violate their state constitutional right to freely exercise their religion. In response, the Governor argues that that argument is not properly before this court because plaintiffs did not assert it in their complaint.
As detailed above, plaintiffs’ complaint claims that the Governor‘s executive orders violated state statutory and constitutional time limits, and it seeks six declarations, each of which is based on the theory that the orders had expired. 366 Or at 521. In keeping with that theory, plaintiffs asked the circuit court to enjoin all of the orders, not only those that they contend affect their religious liberties. Plaintiffs did argue that the orders affected their religious practices, but they did so in connection with their argument about other factors that courts consider when determining whether to issue a preliminary injunction, specifically, whether the party requesting the injunction will be irreparably harmed if the injunction is not issued and, if so, how the harm to that party compares to any harm that would be suffered by the other party and the public if the injunction is issued. In other words, plaintiffs did not assert a stand-alone free-exercise claim that the Governor‘s orders were invalid because they violate constitutionally protected religious freedoms. Moreover, plaintiffs did not base their preliminary injunction request on such a theory,
III. CONCLUSION
As noted at the outset, this case is before this court for a determination whether the circuit court erred in issuing a preliminary injunction based on its conclusion that the Governor‘s executive orders relating to the coronavirus violated a statutory time limit, specifically, the 28-day time limit in
Peremptory writ of mandamus to issue immediately, in terms consistent with this opinion.
GARRETT, J., concurring in the judgment.
The majority opinion thoroughly lays out some problems with the interpretation of
A circuit court has the discretion to issue a preliminary injunction.
Traditionally, courts in equity have considered four factors to determine whether to grant or deny a preliminary injunction: (1) whether the plaintiff might suffer irreparable harm without an injunction; (2) the balance of equities, hardships, and conveniences between the parties; (3) whether the public interest weighs for or against an injunction; and (4) the plaintiff‘s likelihood of success on the merits. See Winter, 555 US at 20 (describing traditional equity standards); Injunctions, 42 Am Jur 2d § 15 (same).
Our case law on the standards for preliminary injunctions is not well developed. The case law that we do have expressly recognizes the first three factors. See State of Oregon ex rel. v. Dobson, 195 Or 533, 580, 245 P2d 903 (1952) (showing of irreparable harm required) (citing Injunctions, 28 Am Jur § 14); State ex rel. v. Duncan, 191 Or 475, 500, 230 P2d 773 (1951) (court must balance hardships and “conveniences“); Bennett v. City of Salem et al., 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.“).
In its limited case law, this court has not had the occasion to consider the fourth factor, the likelihood of success on the merits. But this court also has never indicated an intent to depart from the traditional factors, including the likelihood of success—a factor so well-established as to be axiomatic. See Winter, 555 US at 20 (recognizing that the plaintiff‘s likelihood of success on the merits is a preliminary injunction factor); John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv L Rev 525, 527 (1978) (noting that 18th-century English courts in equity frequently considered “the strength of the plaintiff‘s case“); see also James L. High, 1 A Treatise on the Law of Injunctions, § 5 (3d ed 1890) (“The court will not, however, upon an application for an interlocutory injunction, shut its eyes to the question of the probability of plaintiff ultimately establishing his demand, nor will it by injunction disturb defendant in the exercise of a legal right without a probability that plaintiff may finally maintain his right as against that of the defendant.“). As a result, the circuit court did not err in considering the likelihood of success on the merits, and the parties have not argued otherwise.
Contrary to the circuit court‘s conclusion, however, none of the relevant factors favors the grant of extraordinary preliminary injunctive relief. First and foremost, plaintiffs have not demonstrated a likelihood of prevailing on their statutory arguments. Where I part company with the majority is that I would stop short of concluding, at this stage, that plaintiffs cannot prevail on those arguments; it is enough to say that their arguments to this point fall short of what is required for preliminary injunctive relief. See American Life Ins. v. Ferguson, 66 Or 417, 420, 134 P 1029 (1913) (“[A court] should merely recognize that a sufficient case has been or has not been made to warrant the preservation of the property or rights in statu quo until the hearing on the merits, without expressing a final opinion as to such right.“); Helm et al. v. Gilroy et al., 20 Or 517, 520, 26 P 851 (1891) (same) (citing High, A Treatise on the Law of Injunctions, §§ 4, 5).
In light of all that, the question toward which the circuit court‘s discretion should have been directed is this: Is the irreparable harm that plaintiffs will suffer if the Governor‘s executive orders are not immediately
Framing the issue in that way does not minimize the harms that plaintiffs and intervenors are claiming will flow from the continued operation of the Governor‘s executive orders, nor does it deny that those harms are irreparable. The inability of plaintiffs to worship in the manner that they prefer and the inability of intervenors to carry on their businesses in the manner that is usual (or at all) is irreparable harm for these purposes, even if temporary. But, in these circumstances, the harm to their opponents and the public must also be considered, and considered in the light that, in the seemingly likely event that plaintiffs will lose, that harm will have been suffered needlessly.
In cases involving competing private interests, consideration of the “public interest” factor may play little or no role. In this case, it predominates. The Governor is defending not her personal interests, but her considered understanding of the public interest. Her executive orders, as plaintiffs acknowledge, are directed at protecting the public. As the Governor of Oregon, she is uniquely situated, and duty-bound, to protect the public in emergency situations and to determine, in such emergencies, where the public interest lies. The challenged orders were issued in performance of those duties, based on consideration of the range of dangers that different Oregonians may face from COVID-19, the scientific evidence that is available to her regarding how best to contain the disease, and the strong interests of Oregonians in maintaining their religious practices and businesses but also in protecting themselves and their loved ones.
As Chief Justice Roberts observed days ago, “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. *** When [state] officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.‘” South Bay United Pentecostal Church v. Newsom, No. 19A1044, 590 US ___, ---, 2020 WL 2813056 at *1 (May 29, 2020) (Roberts, C. J., concurring) (quoting Marshall v. United States, 414 US 417, 427, 94 S Ct 700, 38 L Ed 2d 618 (1974)). Notably, “[i]t 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 US 11, 30, 25 S Ct 358, 49 L Ed 643 (1905). “That is especially where, as here, a party seeks emergency relief *** while local officials are actively shaping their response to changing facts on the ground.” South Bay United Pentecostal Church, 2020 WL 2813056 at *2.
In determining that the Governor‘s executive orders should be enjoined, the circuit court did not give sufficient attention to the Governor‘s role, in emergency situations such as the COVID-19 pandemic, in determining what is in the public interest, and it did not give the necessary weight to the harm to that public interest, as delineated by the state‘s elected executive, that would result if her orders were enjoined. The circuit court‘s error in that regard is compounded by the likelihood that such harm to the public interest will be suffered needlessly, given that plaintiffs have not demonstrated that they are likely to prevail on the merits. For all those reasons, the issuance of the preliminary injunction was outside the permissible range of the circuit court‘s discretion.
Balmer, J., joins in this opinion concurring in the judgment.
Notes
• EO 20-03—the Governor‘s initial executive order, which provides that the state of emergency “shall exist for 60 days, *** unless extended or terminated earlier by the Governor“—expired 30 days after it issued by operation of
• The 60-day duration of EO 20-03 violates
• All the orders issued in furtherance of EO 20-03 “are invalid, having terminated by operation of law or being unconstitutional“;
• EO 20-12 is unconstitutional because it “allows [the] Governor to impinge constitutionally protected rights as long as she sees fit—even after [the] duration of the state of emergency set forth in [the Governor‘s] own orders has terminated“; and
• Plaintiffs are free to resume holding and attending religious gatherings.
Plaintiffs’ complaint refers to only 19 of the Governor‘s 21 executive orders issued in response to the coronavirus to date. EO 20-25 had not been issued when plaintiffs filed their complaint. It was issued on May 14, 2020, the day the circuit court held a hearing on plaintiffs’ motion for a preliminary injunction. The parties alerted the court to EO 20-25, and the court included it in the preliminary injunction. EO 20-27, which replaces EO 20-25, was issued on June 5, 2020.
“‘Emergency’ means a human created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to:
“(a) Fire, explosion, flood, severe weather, landslides or mud slides, drought, earthquake, volcanic activity, tsunamis or other oceanic phenomena, spills or releases of oil or hazardous material as defined in
“(b) A rapid influx of individuals from outside this state, a rapid migration of individuals from one part of this state to another or a rapid displacement of individuals if the influx, migration or displacement results from the type of event or circumstance described in paragraph (a) of this subsection.” (Emphases added.) Thus,
“In the event of an emergency the Legislative Assembly shall be convened by the presiding officers of both Houses at the Capitol of the State at times other than required by section 10 of this Article upon the written request of the majority of the members of each House to commence within five days after receipt of the minimum requisite number of requests.”
See also