Petition for Writ of Certiorari — Horizon Christian School, et al., Petitioners v. Kate Brown, Governor of Oregon

Supreme Court briefOct 15, 2021

Ask Donna

What actually matters in this document.

Text

No. 21-___

IN THE

Supreme Court of the United States

————

HORIZON CHRISTIAN SCHOOL, an Oregon nonprofit

corporation; and LIFE CHRISTIAN SCHOOL,

an assumed business name, JOHN MONTANG,

an individual; LYNN MONTANG, an individual;

SARAH RODRIGUEZ, an individual; REGINA MICHELINE,

an individual; JASON NISSEN, an individual;

TRACIE NISSEN, an individual; DAN ALDER,

an individual; DOMINIQUE BAYNES, an individual;

ALEXANDER JONES, an individual; ASHLEY CADONAU,

an individual; JARROD LEVESQUE, an individual;

ROBIN LEVESQUE, an individual,

Petitioners,

KATE BROWN, GOVERNOR OF THE STATE OF OREGON,

in her official capacity only,

————

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JOHN KAEMPF

Counsel of Record

KAEMPF LAW FIRM PC

2021 SW Main St. Ste. 64

Portland, OR 97205

(503) 224-5006

john@kaempflawfirm.com

Counsel for Petitioners

October 15, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

This is yet another pandemic injunction case out of

the Ninth Circuit brought by religious entities against

a Western governor. Respondent closed Oregon’s

religious K-12 schools for most of 2020. She did that

in part because she fears a “mass exodus” from her

public schools to religious schools if they remain open

while her public schools are closed—and the related

loss of money to the State. And this case widens the

split to nine Courts of Appeals concerning the questions presented.

The two questions presented are:

1. To obtain injunctive relief against a state

governor during the pandemic—and to satisfy

the exception to mootness for a controversy

“capable of repetition, yet evading review”—

does a plaintiff, in all cases, now have to show

they are under a “constant threat” of being

closed again? Or, while that showing is one

“sufficient” way to show a case is not moot, is it

not “necessary” in every case?

2. To show that a request for injunctive relief

during the pandemic is moot, does a state

governor still have a “formidable burden” to

make it “absolutely clear” that the claimed

wrongful behavior could not reasonably be

expected to recur?

This case concerns Respondent, Kate Brown, the

Governor of Oregon, (1) closing all religious K-12

schools for most of 2020. She did that in part because

(2) she admittedly fears a “mass exodus” to religious

schools from her public schools—and the (3) related

loss of money to the State—if religious schools remain

open while her public schools are closed. Pet.App.20a24a, 29a-38a, 44a-47a, 52a-61a, 63a-70a.

(i)

And, she then (4) made sure that all private schools,

thus including all religious schools, did not receive any

of the 5 million free high quality KN-95 masks given

to Oregon by FEMA—despite being specifically designated for “all” schools. And she then (5) mandated

masks indoors all day at schools. Pet.App.25a-28a,

43a-44a, 49a-50a, 61a-62a, 71a-75a; and No. 3:20-cv01345-MO, ECF 125 at 18, n.3.1

So, Petitioners humbly assert that this case is

perhaps the most important of the many religious

entity pandemic injunction cases this Court decided in

the last year. That is true in part because of the

flagrant and repeated nature of Respondent’s violations of Petitioners’ First Amendment rights shows a

need for the Court to establish uniform legal standards applicable to the conduct of governors and other

government officials during the pandemic. That will

help prevent further irreparable injury to religious

entities and people of faith. And the recurring nature

of this type of litigation, and the important First

Amendment issues it raises nationally, continues to

generate conflicting Courts of Appeals decisions. Nine

Circuits are sharply divided on the questions presented.

And the Court clarifying the law warrants injunctive

relief for Petitioners, thereby reversing the decision

below.

And this case presents important questions of

federal law about the status of fundamental First

Amendment freedoms during the pandemic that have

not been—but should be—settled by this Court.

State of Oregon Newsroom, Governor Kate Brown Directs

State Agencies to Align K-12 Mask Guidance with CDC

Recommendations to Prevent Disruptions to Return to In-Person

Instruction (Jul. 29, 2021), https://tinyurl.com/2uwsxmdm.

iii

Also, the wide split among the Courts of Appeals

contains decisions that conflict with the relevant

decisions of this Court.

Respondent’s (1) intentional violations of Petitioners’

fundamental First Amendment rights are (2) flagrant;

(3) undisputed; (4) repeated; (5) reasonably expected

to recur; and she does not (6) make it “absolutely clear”

that she will never take any such actions again,

contrary to what this Court has long required of a

defendant like her.

Thus, Petitioners here, and religious entities nationwide, need and deserve proactive protection against

the unilateral actions of executive branch officials like

Respondent through injunctive relief. “The loss of

First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976). Thus,

injunctive relief is needed now, rather than after the

damage is again done. “The applicants have made the

showing needed to obtain relief, and there is no reason

why they should bear the risk of suffering further

irreparable harm in the event of another reclassification.” Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63, 68-69 (2020), “Diocese” (emphasis

added). And “even in a pandemic, the Constitution

cannot be put away and forgotten.” Id. at 68.

Then, here, as in Diocese, where the Court held,

under the facts before it, that a “constant threat” of

churches and synagogues being closed again justified

injunctive relief, id., Respondent—after this case was

filed—and after her unconstitutional “mass exodus”

concern was then exposed—allowed all K-12 schools to

begin reopening in February 2021.2

The relevant facts are few, undisputed, and straightforward. And this case is a great vehicle to resolve a

wide split among the Courts of Appeals about an

important and constantly recurring federal legal issue

concerning what is needed to obtain injunctive relief

during the pandemic.

And this case asks the Court to clarify the competing

constitutional concerns of exercising fundamental

First Amendment rights, and the executive branch’s

claimed desire to further public safety. It is the subject

of a split among nine sharply divided Courts of

Appeals, as shown herein.

This legal issue is coming up over and over again in

federal courts nationwide—but under different legal

standards. Compelling reasons to grant certiorari

include resolving that conflict, and providing certainty

and uniformity for all judges and litigants addressing

this recurring legal issue.

And this Petition addresses the constitutional separation of powers through the judicial branch properly

telling the executive branch the limits on its unilateral

actions during the pandemic when they infringe

on fundamental First Amendment rights. See Food

& Drug Admin. v. Am. Coll. of Obstetricians &

Gynecologists, 141 S. Ct. 10, 11 (2020) (the free exercise of religion “has suffered previously unimaginable

restraints” during the pandemic) (Alito, J., dissenting

from holding injunction application in abeyance).

OPB, Gov. Kate Brown will ease COVID-19 related

restrictions placed on schools, urges more to reopen in February

(Dec. 23, 2020), https://www.opb.org/article/2020/12/23/oregonreopen-schools-in-person-learning/.

“Constitutional rights do not always have easily

ascertainable boundaries, and controversy over the

meaning of our Nation’s most majestic guarantees

frequently has been turbulent. As judges, however, we

are sworn to uphold the law even when its content

gives rise to bitter dispute.” Thornburgh v. Am. Coll.

of Obstetricians and Gynecologists, 476 U.S. 747, 771

(1986), overruled on other grounds by Planned

Parenthood of Southeastern Pennsylvania v. Casey,

505 U. S. 833, 882-883 (1992).

The Court is aware that many recent cases brought

against governors and other government officials by

religious and other entities seeking injunctive relief

during the pandemic have come through the District

Courts, the Courts of Appeals, and arrived at this Court.

They include these 13 cases, and in just the last

year: (1) Diocese; (2) Tandon v. Newsom, 141 S. Ct.

1294 (2021); (3) Calvary Chapel Dayton Valley v.

Sisolak, 140 S. Ct. 2603 (2020); (4) High Plains

Harvest Church v. Polis, 141 S. Ct. 527 (2020); (5)

Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 1289

(2021); (6) South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716 (2021); (7) Food and Drug

Administration v. Am. Coll. of Obstetricians and

Gynecologists, 141 S. Ct. 10 (2020); (8) Food and Drug

Administration v. Am. Coll. of Obstetricians and

Gynecologists, 141 S. Ct. 578 (2021); (9) Alabama

Association of Realtors v. Department of Health and

Human Services, 141 S. Ct. 2485 (August 26, 2021);

(10) Chrysafis v. Marks, 141 S. Ct. 2482 (August 2,

2021); (11) Merrill v. People First of Alabama, 141 S.

Ct. 25 (2020); (12) Barnes v. Ahlman, 140 S. Ct. 2620

(2020); and (13) Andino v. Middleton, 141 S. Ct. 9 (2020).

So, granting certiorari could “stop the bleeding” for

the Court at 14 cases on this issue. And, perhaps more

importantly, doing so would also make things much

easier for all lower courts, and fairer to litigants

nationwide. Respectfully, fundamental First Amendment

rights being upheld during the pandemic should not

depend on where you happen to live.

After the Court’s recent decisions above, and as

shown below, the Courts of Appeals have been all over

the place about the requirements for pandemic injunctive relief against government officials, and when a

case is moot. And they are sharply divided about

whether a “constant threat” of again being closed or

restricted is now required in every case to obtain

injunctive relief—because of the “constant threat”

statements by the Court in Diocese and Tandon.

And, it is now unclear whether a government official

still has the “formidable burden” to make it “absolutely

clear” that the allegedly illegal conduct will not happen

again—and they should.

Some Courts of Appeals hold that a “constant

threat” of being shut down again must now always be

shown because of Diocese and Tandon.

But another Court of Appeals holds that there being

“constant threat” is only the facts in Diocese; and while

it is one “sufficient” way to defeat a mootness argument,

it is not now “necessary” in every case. And other

Courts of Appeals hold that during the pandemic, a

government defendant still has the “formidable burden”

to make it “absolutely clear” that the challenged conduct

will never recur—a burden Respondent fails to meet.

And, to the extent Diocese and Tandon now impose

a new “constant threat” requirement in all cases, that

conflicts with the Court’s decisions in (1) Kingdomware

Techs., Inc. v. United States, 136 S. Ct. 1969, 1976

(2016). It confirms the Court’s longstanding rule that

vii

a “reasonable expectation that the same complaining

party will be subject to the same action again,”—

shown here—warrants injunctive relief. And (2)

Federal Election Com’n v. Wisconsin Right To Life,

Inc., 551 U.S. 449 (2007). The Court held that “these

cases . . . fit comfortably within the established exception to mootness for disputes capable of repetition, yet

evading review. That exception applies where ‘(1) the

challenged action is in its duration too short to be fully

litigated prior to cessation or expiration; and (2) there

is a reasonable expectation that the same complaining

party will be subject to the same action again.’ Both

circumstances are present here.” The “second prong of

the ‘capable of repetition’ exception requires a ‘reasonable expectation’ or a ‘demonstrated probability’ that

‘the same controversy will recur involving the same

complaining party.’” Our “cases find the same controversy sufficiently likely to recur when a party has a

reasonable expectation that it ‘will again be subjected

to the alleged illegality.’” We “hold that there exists a

reasonable expectation that the same controversy

involving the same party will recur. We have jurisdiction to decide these cases.” Id. at 463-464 (cleaned up).

And see Republican Party of Pennsylvania v.

Degraffenreid, 141 S. Ct. 732, 739 (2021) (“the cases

now before us are not moot. There is a ‘reasonable

expectation’ that the parties will face the same question in the future.”) (Justice Alito with whom Justice

Gorsuch joins, dissenting from the denial of certiorari).

Thus, granting certiorari here is the vehicle that

allows the Court to resolve this sharp split of authority

among nine Courts of Appeals in an area of law that is

the subject of a lot of novel constitutional litigation

nationwide that keeps on going with new “variants”—

just like the pandemic.

viii

CORPORATE DISCLOSURE STATEMENT

Petitioners have no parent corporation, and no

publicly held company owns 10% or more of their

stock.

STATEMENT OF RELATED PROCEEDINGS

This civil case arises from the following proceedings:

U.S. Court of Appeals for the Ninth Circuit, No. 2135005, Memorandum and Order, Judgment entered

August 2, 2021. Pet.App.1a-4a.

Ninth Circuit Mandate issued September 8, 2021,

concerning the August 2, 2021 judgment. Pet.App.5a.

On August 31, 2021, the Ninth Circuit Panel denied

Petitioners’ request for rehearing, and the full Ninth

Circuit denied their petition for En Banc review.

Pet.App.19a.

U.S. District Court for the District of Oregon, No.

3:20-cv-01345-MO, Order entered December 31, 2020

denying Petitioners’ renewed request for a

preliminary injunction. Pet.App.6a.

The District Court’s hearing on Petitioners’ renewed

request for a preliminary injunction provides the

record of the court’s opinion and reasoning for its

December 31, 2020 denial. Pet.App.7a-18a.

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14(b)(iii).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

CORPORATE DISCLOSURE STATEMENT .....

viii

STATEMENT OF RELATED PROCEEDINGS.....

viii

TABLE OF AUTHORITIES ................................

xii

INTRODUCTION ................................................

OPINIONS AND ORDERS BELOW ..................

STATEMENT OF JURISDICTION ....................

CONSTITUTIONAL PROVISION INVOLVED ....

STATEMENT OF THE CASE ............................

A. Three Rule 10 factors, including a split

among nine Courts of Appeals, support

granting certiorari. ...................................

B. The Court should grant certiorari to also

resolve the Ninth Circuit’s widening and

dire intra-Circuit conflict, which it refused

to resolve En Banc. ...................................

C. Holding classes in-person and having

their students learn communally is an

undisputedly sincere religious belief of

Petitioners. ................................................

REASONS FOR GRANTING THE WRIT ..........

The lower courts’ decisions do not follow

this Court’s controlling decisions. ............

(ix)

TABLE OF CONTENTS—Continued

Page

B. Whether a “constant threat” of being

closed or restricted again must now

always be shown to obtain injunctive

relief during the pandemic is the subject

of a deep split among nine Courts of

Appeals that the Court should resolve

through the vehicle of this case. ...............

C. This case involves an issue of national

importance regarding the status of

fundamental First Amendment rights

during the pandemic, and protecting

religious entities against state governors

intentionally trampling on those rights.

And it is the subject of a lot of litigation

nationwide. ................................................

D. Respondent’s school closure directives

and Executive Orders do not satisfy the

Court’s requirements for strict scrutiny. .

E. Petitioners satisfy all other injunction

requirements. So, the Court should grant

certiorari and reverse. ..............................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: MEMORANDUM, 9th Circuit Court of Appeals (August 2, 2021)..........

APPENDIX B: MANDATE, 9th Circuit

Court of Appeals (September 8, 2021) ...........

APPENDIX C: MINUTES OF PROCEEDINGS/ORDER, District Court, District of

Oregon (December 31, 2020) ..........................

TABLE OF CONTENTS—Continued

Page

APPENDIX D: TRANSCRIPT OF PROCEEDINGS, District Court, District of

Oregon (December 31, 2020) ..........................

APPENDIX E: ORDER, 9th Circuit Court

of Appeals (August 31, 2021) .........................

19a

APPENDIX F: STARRETT DECLARATION,

District Court, District of Oregon (August

17, 2020) .........................................................

20a

APPENDIX G: KAEMPF DECLARATION,

District Court, District of Oregon (November

12, 2020) .........................................................

22a

APPENDIX H: TRANSCRIPT OF PROCEEDINGS, District Court, District of

Oregon (November 17, 2020) .........................

29a

APPENDIX I: KAEMPF DECLARATION,

District Court, District of Oregon (September

15, 2021) .........................................................

39a

APPENDIX J: Oregon K-12 Resiliency

Framework (September 9, 2021) ...................

71a

APPENDIX K: NOTICE OF APPEAL,

District Court, District of Oregon (January

2, 2021) ...........................................................

76a

xii

TABLE OF AUTHORITIES

CASES

Page(s)

36 Apartment Associates, LLC v. Cuomo,

No. 20-2565-cv, 2021 WL 3009153

(2d. Cir. July 26, 2021) ............................

Alabama Association of Realtors v.

Department of Health and Human

Services,

141 S. Ct. 2485 (August 26, 2021) ............

Andino v. Middleton,

141 S. Ct. 9 (2020) .....................................

Barnes v. Ahlman,

140 S. Ct. 2620 (2020) ...............................

Bayley’s Campground, Inc. v. Mills,

985 F.3d 153 (1st Cir. 2021) ..................... 9, 10

Boston Bit Labs, Inc. v. Baker,

11 F.4th 3 (1st Cir. 2021)..........................

Brach v. Newsom,

6 F.4th 904 (9th Cir. July 23, 2021) ...7, 12, 15, 21

Buckhannon Bd. and Care Home, Inc. v.

West Virginia Dept. of Health and

Human Resources,

532 U.S. 598 (2001) ............................... 5, 20, 23

Calvary Chapel Dayton Valley v. Sisolak,

982 F.3d 1228 (9th Cir. 2020) ...................

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ...............................

Cassell v. Snyders,

990 F.3d 539 (7th Cir. March 8, 2021) .....

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993) ................................... 19, 21

Chrysafis v. Marks,

141 S. Ct. 2482 (August 2, 2021) ..............

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .....................................

County of Butler v. Governor of Pennsylvania,

8 F.4th 226 (3rd Cir. August 11, 2021) ....

Elrod v. Burns,

427 U.S. 347 (1976) .......................... iii, 3, 17, 23

Espinoza v. Montana Department of

Revenue,

140 S. Ct. 2246 (2020) ...............................

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) ...................................

Federal Election Com’n v. Wisconsin Right

To Life, Inc.,

551 U.S. 449 (2007) ...................................

vii

Food & Drug Admin. v. Am. Coll. of

Obstetricians & Gynecologists,

141 S. Ct. 10 (2020) ...................................

iv, v

Food and Drug Administration v. Am.

Coll. of Obstetricians and Gynecologists,

141 S. Ct. 578 (2021) .................................

Friends of the Earth, Inc. v. Laidlaw

Environmental Services, Inc.,

528 U.S. 167 (2000) ...................................

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

George v. City of Long Beach,

973 F.2d 706 (9th Cir. 1992) .....................

Harvest Rock Church, Inc. v. Newsom,

141 S. Ct. 1289 (2021) ...............................

Haney v. Pritzker,

No. 20-3653, 2021 WL 4402418

(N.D. Ill. September 27, 2021) ..................

Hawse v. Page,

7 F.4th 685 (8th Cir. July 30, 2021) .........

High Plains Harvest Church v. Polis,

141 S. Ct. 527 (2020) .................................

Honig v. Doe,

484 U.S. 305 (1988) ...................................

Horizon Christian School v. Brown,

854 Fed. Appx. 807 (9th Cir. 2021) .... 1, 4, 6, 12

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C.,

565 U.S. 171 (2012) ...................................

Indiana Employment Security

Division v. Burney,

409 U.S. 540 (1973) ...................................

Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969 (2016) ...............................

vi, 8

League of Women Voters of

South Carolina v. Andino,

849 Fed. Appx. 39

(4th Cir. March 11, 2021) .........................

TABLE OF AUTHORITIES—Continued

Page(s)

Lynch v. Donnelly,

465 U.S. 668 (1984) ...................................

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Com’n,

138 S. Ct. 1719 (2018) ...............................

Melendres v. Arpaio,

695 F.3d 990 (9th Cir. 2012) .....................

Memphis A. Philip Randolph Institute v.

Hargett,

2 F.4th 548 (6th Cir. June 22, 2021) ........

Merrill v. People First of Alabama,

141 S. Ct. 25 (2020) ...................................

People Not Politicians Oregon v. Clarno,

826 Fed. Appx. 581 (9th Cir. 2020) ..........

Pleasant View Baptist Church v. Beshear,

838 Fed. Appx. 936 (6th Cir. 2020) .......... 11, 12

Reclaim Idaho v. Little,

826 Fed. Appx. 592 (9th Cir. 2020) ..........

Republican Party of Pennsylvania v.

Degraffenreid,

141 S. Ct. 732, 739 (2021) .........................

vii

Resurrection School v. Hertel,

No. 20-2256, 2021 WL 3721475

(6th Cir. August 23, 2021) ........................

Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020) ....................passim

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

South Bay United Pentecostal Church v.

Newsom,

141 S. Ct. 716 (2021) .................................

Spell v. Edwards,

962 F.3d 175 (5th Cir. 2020) ..................... 10, 22

Spence v. State of Wash.,

418 U.S. 405 (1974) ...................................

St. Paul Fire & Marine Ins. Co. v. Barry,

438 U.S. 531 (1978) ...................................

Stack v. Boyle,

342 U.S. 1 (1951) .......................................

Tandon v. Newsom,

141 S. Ct. 1294 (2021) ..............................passim

Thompson v. Dewine,

No. 21-3514, 2021 WL 3183692

(6th Cir. July 28, 2021) .............................

Thornburgh v. Am. Coll. of Obstetricians

and Gynecologists,

476 U.S. 747, 771 (1986) ...........................

Trinity Lutheran Church of Columbia v.

Comer,

137 S. Ct. 2012 (2017) ............................... 15, 18

United States v. Raines,

362 U.S. 17 (1960) .....................................

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (March 8, 2021) .................

Vitek v. Jones,

445 U.S. 480 (1980) ...................................

xvii

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. art. III ........................................

U.S. Const. amend. I ...................................passim

U.S. Const. amend. XIV ...............................

STATUTES

28 U.S.C. § 1254(l) ........................................

28 U.S.C. § 1292(a)(1)...................................

28 U.S.C. § 1331 ...........................................

28 U.S.C. § 1343 ...........................................

28 U.S.C. § 2201–02 .....................................

42 U.S.C. § 1983 ........................................... 3, 13

42 U.S.C. § 1988 ...........................................

RULES

Fed. R. Civ. P. 65 ..........................................

Sup. Ct. R. 10 ................................................

OTHER AUTHORITIES

KGW8 News, Oregon State Police troopers

leaving federal courthouse in downtown

Portland (Aug. 13, 2020), https://tinyurl.

com/yncp48kb ........................................

xviii

TABLE OF AUTHORITIES—Continued

Page(s)

OPB, Gov. Kate Brown will ease COVID19 related restrictions placed on schools,

urges more to reopen in February (Dec.

23, 2020), https://www.opb.org/article/

2020/12/23/oregon-reopen-schools-in-pe

rson-learning/ ........................................

Statesman Journal, Scuffles break out as

opposing groups protest at Oregon Capitol

Saturday (Aug. 15, 2021), https://tinyurl

com/4x22nmvh ..........................................

State of Oregon Newsroom, Governor Kate

Brown Directs State Agencies to Align

K-12 Mask Guidance with CDC Recommendations to Prevent Disruptions to

Return to In-Person Instruction (Jul. 29,

2021), https://tinyurl.com/2uwsxmdm .....

INTRODUCTION

The Court has issued many decisions in just the last

year addressing what is required to obtain injunctive

relief against a State governor or other government

official during the pandemic. And a big part of these

decisions address when such relief is still warranted

even though a religious entity was allowed to reopen—

or is otherwise no longer restricted—under the “capable

of repetition yet evading review” exception to mootness.

Two of the Court’s recent pandemic injunction decisions, Diocese and Tandon, hold that a “constant

threat” of being closed again defeats mootness. And

those statements have created a wide split among nine

Courts of Appeals. Several indicate that a “constant

threat” must now always be shown to obtain injunctive

relief during the pandemic. But the Ninth Circuit

disagrees, holding that while a “constant threat” is one

“sufficient” way to avoid mootness, it is not “necessary”

in every case. This case asks the Court to resolve that

split for the benefit of the many parties and judges

involved in the never-ending pandemic injunction

litigation.

OPINIONS AND ORDERS BELOW

U.S. Court of Appeals for the Ninth Circuit, No. 2135005, Memorandum and Order, Judgment entered

August 2, 2021. The Ninth Circuit’s decision has not

yet been published in the Federal Reporter, but is

reported at 854 Fed. Appx. 807, and reprinted at

Pet.App.1a-4a.

The Ninth Circuit Mandate issued September 8,

2021, concerning the August 2, 2021 judgment is

reprinted at Pet.App.5a.

U.S. District Court for the District of Oregon, No.

3:20-cv-01345-MO, Order entered December 31, 2020

denying Petitioners’ renewed request for a preliminary

injunction is reprinted at Pet.App.6a.

The District Court’s hearing on Petitioners’ renewed

request for a preliminary injunction provides the record

of the Court’s opinion and reasoning for its December

31, 2020 denial, and is reprinted at Pet.App.7a-18a.

STATEMENT OF JURISDICTION

On August 31, 2021, the Ninth Circuit Panel denied

Petitioners’ request for rehearing, and the full Ninth

Circuit denied their petition for En Banc review.

Pet.App.19a.

Petitioners filed their renewed emergency motion

for a preliminary injunction on November 25, 2020.

No. 3:20-cv-01345-MO, ECF No. 56. The District

Court had jurisdiction under 28 U.S.C. §§ 1331 and

1343, and authority to issue injunctive relief under 28

U.S.C. §§ 1343 and 2201–02, and Fed. R. Civ. P. 65.

The United States District Court for the District of

Oregon denied Petitioners’ renewed motion for a preliminary injunction on December 31, 2020. Pet.App.6a18a. On January 2, 2021, Petitioners filed a timely

notice of appeal. Pet.App.76a-77a.

The Ninth Circuit had jurisdiction to review the

district court’s denial of the requested preliminary

injunction under 28 U.S.C. § 1292(a)(1).

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment provides, in relevant part:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof;” or abridging “the right of the people peaceably to assemble.”

“The First Amendment applies to the States by

virtue of the Fourteenth Amendment.” Spence v. State

of Wash., 418 U.S. 405, 413, n.7 (1974).

STATEMENT OF THE CASE

The two questions presented are relevant, dispositive of the outcome of this case, and were raised and

decided below. And this case has broader significance

because of the glut of pandemic injunction litigation

nationwide, as shown in part by this Court’s many

pandemic injunction decisions in just the last year.

1. Factual background. This is a 42 U.S.C. § 1983

civil rights action against Respondent. Petitioners

seek an injunction barring her from again

closing Oregon’s K-12 religious schools for inperson classes during the pandemic. That is

because doing so is contrary to their undisputedly sincere religious belief in communal, inperson learning. Respondent closed Petitioners’

schools for most of 2020 in part because she

fears a “mass exodus” to them from her public

schools if they remain open when her public

schools are closed—and the related loss of

money to the State. Pet.App.20a-24a, 29a-38a,

44a-47a, 52a-61a, 63a-70a.

And “the loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373.

2. Trial court proceedings. The District Court

denied Petitioners’ request for injunctive relief.

Pet.App.6a, 17a-18a.

3. Ninth Circuit Court of Appeals. The Ninth

Circuit affirmed the District court’s denial of

injunctive relief. The Ninth Circuit, citing

Diocese, stated three times that a “constant

threat” of being shut down again is required to

obtain injunctive relief, and held that this

requirement is not met here. Pet.App.1a-4a.

Petitioners respectfully ask the Court, given the

split of authority among nine Courts of Appeals—and

many contradictory pandemic injunction decisions

being issued frequently—to clarify its recent decisions

in Diocese and Tandon; and the standard for obtaining

injunctive relief during the pandemic—including

when a case is or is not moot.

A. Three Rule 10 factors, including a split

among nine Courts of Appeals, support

granting certiorari.

Petitioners respectfully ask the Court to grant

certiorari because they satisfy three factors in the

Court’s Rule 10.

And the issue they ask the Court to decide is the

subject of a lot of novel constitutional litigation nationwide, with “variants” that show no sign of stopping—

just like the pandemic.

Thus, granting certiorari and deciding the legal

issues this case raises will greatly simplify this type of

litigation—and increase judicial economy and fairness, as shown by the Court’s 13 pandemic injunction

cases in just the last year summarized herein. See

Stack v. Boyle, 342 U.S. 1, 11 (1951) (ruling to “afford

a practical, simple, adequate and expeditious procedure.

In view of prevailing confusions and conflicts in practice, this Court should define and limit the procedure

with considerable precision;” the absence of which

“may flood the courts with motions and appeals.”).

(1) Several Courts of Appeals have decided an

important question of federal law that has not been,

but should be, settled by this Court. And they have

(2) decided an important federal question in a way that

conflicts with relevant decisions of this Court. And

(3) the Courts of Appeals are sharply conflicted on the

same important matter.

And this case involves an intra-Circuit conflict that

the Ninth Circuit refused to resolve En Banc, as shown

below.

And the facts are few, straightforward, and undisputed. For most of 2020, Respondent kept Oregon’s

religious K-12 schools closed. She did that in part

because she fears a “mass exodus” to them from her

public schools—and the related loss of money to the

State—if they remain open while her public schools

are closed. Pet.App.20a-24a, 29a-38a, 44a-47a, 52a61a, 63a-70a.

So, Petitioners sued, seeking an injunction to reopen

their schools, and to prevent Respondent from closing

them again during the pandemic.

Petitioners also seek nominal damages for the

violations of their constitutional rights. In the Ninth

“Circuit, nominal damages must be awarded if a

plaintiff proves a violation of his constitutional rights.”

George v. City of Long Beach, 973 F.2d 706, 708 (9th

Cir. 1992).

Petitioners also seek 42 U.S.C. § 1988 prevailing

party attorney fees. Buckhannon Bd. and Care Home,

Inc. v. West Virginia Dept. of Health and Human

Resources, 532 U.S. 598, 603-604 (2001) (an award of

nominal damages makes a party “prevail” under § 1988).

After this case was filed, Respondent then reopened

all K-12 schools in Oregon. She contends that makes

this case moot. The District Court agreed, and the

Ninth Circuit affirmed. It cited and relied on the

Court’s “constant threat” statement in Diocese 3 times

as controlling—and held that Petitioners fail to satisfy

it. Pet.App.1a-4a.

The Ninth Circuit Panel denied Petitioners’ request

for rehearing. And the full Ninth Circuit denied their

request for rehearing En Banc. Pet.App.19a.

In Diocese, the Court held, under the facts before it,

that “it is clear that this matter is not moot. And

injunctive relief is still called for because the applicants

remain under a constant threat” that the defendant

governor would again effectively bar religious

gatherings in the area at issue. 141 S. Ct. at 68

(emphasis added.)

In Tandon, the Court, citing Diocese, stated that

“even if the government withdraws or modifies a

COVID restriction in the course of litigation, that does

not necessarily moot the case. And so long as a case is

not moot, litigants otherwise entitled to emergency

injunctive relief remain entitled to such relief where

the applicants ‘remain under a constant threat’ that

government officials will use their power to reinstate

the challenged restrictions.” Tandon, 41 S. Ct. at 1297

(emphasis added).

Several Courts of Appeals have taken the above

statements by the Court in Diocese and Tandon to

create a new and “bright line” rule that injunctive

relief for religious entities is now only allowed upon

showing a “constant threat” of being closed or

otherwise restricted by a state governor again.

But other Courts of Appeals hold that this Court’s

longstanding rule that a mere “reasonable expectation” of the same action being taken again is still

enough to warrant injunctive relief.

And some Courts of Appeals create further confusion by holding that meeting either standard is

enough.

And the Ninth Circuit muddies the waters even

more by holding that a “constant threat” is “sufficient,”

but is not “necessary” in all cases to obtain injunctive

relief during the pandemic—a “reasonable expectation” is still enough. But it then refused to apply its

own different rule to this case. That creates a dire

intra-Circuit conflict it refused to resolve En Banc.

Pet.App.19a.

And because there is (a) no end in sight to the

pandemic—or (b) related legal challenges because of

restrictions on churches and religious schools—and

there is (d) a sharp split among nine Courts of Appeals

on this issue—Petitioners respectfully ask the Court

to grant certiorari.

The following are representative cases showing the

conflict among the Courts of Appeals from the (1)

Ninth; (2) Eighth; (3) Second; (4) Seventh; (5) First; (6)

Fifth; (7) Third; (8) Fourth; and (9) Sixth Circuits.

Brach v. Newsom, 6 F.4th 904, 921 (9th Cir. July 23,

2021) (“the dissent fails to apply the correct legal

standard. It misreads Diocese of Brooklyn to say that

the capable-of-repetition-yet-evading-review doctrine

would apply here only if Plaintiffs remained under a

‘constant threat’ that the challenged restrictions will

be reimposed. But Diocese of Brooklyn did not change

the long-settled standard, which is whether there is a

‘reasonable expectation’ that the same controversy

will recur. Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969, 1976 (2016); Honig v. Doe, 484 U.S.

305, 318 n.6 (1988).” We “have found controversies

capable of repetition based on expectations that, while

reasonable, were hardly demonstrably probable. ***

There was clearly such a reasonable possibility of reoccurrence in Diocese of Brooklyn, given the ‘constant

threat’ the plaintiffs in that case faced. But in finding

that circumstance sufficient to trigger the doctrine, the

Court did not hold that a finding of a ‘constant threat’

was now necessary to invoke the doctrine.” We “conclude that California has failed to carry its burden to

show that there is no ‘reasonable expectation’ this

dispute will recur. Kingdomware Techs., 136 S. Ct.

at 1976” (emphasis by the Ninth Circuit)). And see

Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d

1228, 1230 n.1 (9th Cir. 2020) (holding that a pandemic First Amendment injunction case brought by a

church was “not moot” because “although the Directive

is no longer in effect,” Nevada “Governor Sisolak could

restore the Directive’s restrictions just as easily as he

replaced them, or impose even more severe restrictions.”).

Hawse v. Page, 7 F.4th 685, 692 (8th Cir. July 30,

2021) (church members challenged county health

Orders limiting the size of church gatherings in Saint

Louis County, Missouri during the pandemic. The

court stated that “any controversy over the Public

Health Order of April 20, 2020, is now moot” because

when “it “is absolutely clear that the County’s disputed

conduct could not reasonably be expected to recur, an

action challenging a superseded public health order is

moot.” (emphasis added)).

36 Apartment Associates, LLC v. Cuomo, No. 202565-cv, 2021 WL 3009153 at *2 (2d. Cir. July 26,

2021) (“When a challenged regulation expires during

litigation, ‘that does not necessarily moot the case’

when the plaintiffs can show that they ‘remain under

a constant threat that government officials will use

their power to reinstate the challenged restrictions.’”

And we “are not persuaded that there is ‘a reasonable

expectation of recurrence.’” (citing Diocese and Tandon)).

Cassell v. Snyders, 990 F.3d 539, 548 (7th Cir.

March 8, 2021), citing Diocese, indicated that a “constant threat” must always be shown to obtain

injunctive relief. The Seventh Circuit in Cassell

affirmed the District Court’s denial of a preliminary

injunction sought by the plaintiffs, a church and its

pastor, against pandemic restrictions imposed by the

Governor of Illinois. It reached that decision because

“the case for emergency injunctive relief” in Diocese

“was much stronger than it is here;” and “the Court

concluded that ‘injunctive relief is still called for

because the applicants remain under a constant threat

that the area in question will be reclassified;’” and “the

situation here is quite different.”

Bayley’s Campground, Inc. v. Mills, 985 F.3d 153,

157-158 (1st Cir. 2021) (“But, the Governor has not

denied that a spike in the spread of the virus in Maine

could lead her to impose a self-quarantine requirement just as strict as EO 34’s. Thus, we cannot say

that the Governor has carried ‘the formidable burden’

that she bears ‘of showing that it is absolutely clear the

allegedly wrongful behavior could not reasonably be

expected to recur.’” Accordingly, “we conclude that the

plaintiffs’ request for injunctive relief from EO 34’s

self-quarantine requirement is not moot.” (citations

omitted)). And Boston Bit Labs, Inc. v. Baker, 11 F.4th

3, 11 (1st Cir. 2021) (a pandemic declaratory judgment

action against the Governor of Massachusetts where

the court affirmed the dismissal of the case as moot,

rejecting the plaintiff’s reliance on its decision in

Bayley’s Campground, and this Court’s decision in

Diocese, because “the key to the Court’s not-moot

ruling” in Diocese “was how all this showed that ‘the

applicants remained under a constant threat that the

area in question will be reclassified.’”).

Spell v. Edwards, 962 F.3d 175 (5th Cir. 2020).

While decided before Diocese and Tandon, Spell was

decided during the pandemic last year, and further

widens the relevant split among the Courts of Appeals.

In Spell, the plaintiffs were a Louisiana church and its

pastor who sought injunctive relief against the Governor

of Louisiana restricting in-person church services to

10 congregants. The court denied plaintiffs’ motion for

an injunction, holding that “there is nothing for us to

enjoin. The challenged orders expired more than a

month ago;” and “that means the case is moot.” Id. at

177. But the court also stated that a defendant

asserting mootness must demonstrate “that it is

absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” Id. at 179

(emphasis added). The court further stated that “the

plaintiffs fail to establish that the Governor might

reimpose another gathering restriction on places of

worship.” Id. at 180 (emphasis added). Also, the court

stated that “no one knows what the future of COVID19 holds. But it is speculative, at best, that the

Governor might reimpose the ten-person restriction or

a similar one.” Id. (emphasis added).

County of Butler v. Governor of Pennsylvania,

8 F.4th 226, 229-23 (3rd Cir. August 11, 2021) (in

2020, the Governor and Secretary of Health of

Pennsylvania “entered orders to address the COVID19 pandemic.” Plaintiffs challenged “orders setting

congregation limits in secular settings.” The court

denied injunctive relief because it could not “say that

there is a reasonable expectation that the same

complaining parties will be subject to the same orders

again.” And, unlike here, the “defendants have

represented that the public health landscape has so

fundamentally changed that ‘what we were facing in

this case is not what you would be facing going

forward.’”).

League of Women Voters of South Carolina v.

Andino, 849 Fed. Appx. 39, 41, 43 (4th Cir. March 11,

2021) (voters and voting-rights organizations sued a

South Carolina agency and state officials, seeking an

injunction, and challenged the constitutionality of

election procedures related to absentee ballots in the

presidential election during the pandemic. The court

noted that the ongoing health risks posed by COVID19 led the state to greatly expand eligibility for

absentee voting during the 2020 presidential election;

and stated that to establish mootness the defendants

“bear the formidable burden of showing that it is

absolutely clear [their directives] could not reasonably

be expected to recur.” (Cleaned up; citation omitted;

emphasis added)).

Pleasant View Baptist Church v. Beshear, 838 Fed.

Appx. 936, 939 (6th Cir. 2020) (“Plaintiffs’ reliance on

the Supreme Court’s recent ruling in Roman Catholic

Diocese of Brooklyn v. Cuomo is unavailing. Cuomo

held that a challenge to a COVID-19 public-health

order can remain live even where the current governing regime would not affect the challenged parties if

there remains a ‘constant threat’ of future governmental action.” More “generally, nothing in the record

suggests that it is ‘absolutely clear’ that the Governor

will reinstate the order or will otherwise subject the

plaintiffs to prosecution.” (emphasis added)). As shown

below, that holding in Pleasant View reverses the

correct burden stated by this Court. Resurrection

School v. Hertel, No. 20-2256, 2021 WL 3721475 at *8

(6th Cir. August 23, 2021) (denying injunctive relief

because a “constant threat” was not shown, and stating

“the factual circumstances” in Diocese “are distinguishable from those present here” because defendants

“have rescinded all pandemic restrictions.”); Memphis

A. Philip Randolph Institute v. Hargett, 2 F.4th 548,

561 (6th Cir. June 22, 2021) (holding that the case was

moot because “there is not a reasonable expectation”

that “members of the plaintiff organizations” will “face

the same burdens as voters did in the fall of 2020.”).

Thompson v. Dewine, No. 21-3514, 7 F.4th 521, 526

(6th Cir. 2021) (same).

B. The Court should grant certiorari to also

resolve the Ninth Circuit’s widening and

dire intra-Circuit conflict, which it refused

to resolve En Banc.

Although not as important as the conflict between

nine Courts of Appeals, the Court should also note that

Petitioners pointed out to the Ninth Circuit, in their

original briefing; through their motion for rehearing

by the Panel; and their petition for a rehearing En

Banc, that its own decision in Brach holds that Diocese

does not make it now “necessary” in all cases that a

plaintiff show a “constant threat” of a defendant

closing them again to obtain injunctive relief during

the pandemic. Brach, 6 F.4th at 921. Rather, Brach

holds that this is merely one “sufficient” way to avoid

mootness. Id.

But the Ninth Circuit, ignoring its own decision in

Brach, denied these requests. Pet.App.1a-4a, 5a, 19a.

The correct rule of law from Brach applying here

warrants reversal.

And see Reclaim Idaho v. Little, 826 Fed. Appx. 592,

595 (9th Cir. 2020) (R. Nelson, Circuit Judge, dissenting)

(a Covid election-related injunction case against the

Governor of Idaho stating that no “exception to

mootness” applied because “the unique confluence of

factors giving rise to this as-applied challenge might

occur again, but a mere possibility is not enough to

constitute a ‘reasonable expectation’ or ‘demonstrated

probability’ that ‘the same controversy will recur

involving the same complaining party.’ FEC v. Wis.

Right to Life, Inc., 551 U.S. 449, 463 (2007).” Also

citing City of Los Angeles v. Lyons, 461 U.S. 95, 109

(1983) (cleaned up; emphasis added); see also People

Not Politicians Oregon v. Clarno, 826 Fed. Appx. 581,

584 (9th Cir. 2020) (a Covid election-related injunction

case against the Secretary of State of Oregon with the

same dissent by Judge Nelson as in Reclaim Idaho)).

So, to get it right here—and for the benefit of every

federal court addressing this very “hot” legal issue

nationwide—and all parties before them, Petitioners

respectfully ask the Court to grant certiorari. That

allows it to clarify its recent holdings in Diocese and

Tandon, including whether a governmental defendant

still has the “formidable burden” to make it “absolutely

clear” that a closure or other restriction will never recur.

And that will resolve the deep split of authority

among nine Courts of Appeals.

C. Holding classes in-person and having their

students learn communally is an undisputedly sincere religious belief of Petitioners.

This is a 42 U.S.C. § 1983 civil rights action against

Respondent. She violated Petitioners’ First Amend-

ment rights by closing their schools during the

pandemic for most of 2020. She did that in part based

on her admitted and improper fear of a “mass exodus”

to religious schools from her public schools—and the

related significant loss of money to the State—if

religious schools are allowed to reopen while her

public schools remain closed. Pet.App.20a-24a, 29a38a, 44a-47a, 52a-61a, 63a-70a.

Petitioners appeal from the District Court’s denial

of their renewed emergency preliminary injunction

motion seeking to enjoin Oregon’s then-mandatory

restrictions on in-person schooling at K-12 schools

during the pandemic.

REASONS FOR GRANTING THE WRIT

Given the straightforward nature of the undisputed

facts and constitutional violations; the severity of the

injury to religious freedom; the widespread nature of

the problem; and the duration of the pandemic, only

this Court can now intervene, resolve the sharp split

among nine Courts of Appeals, and restore faith-based

institutions’ First Amendment rights. That includes

the proactive protection against further irreparable

injury that Petitioners request. “The applicants have

made the showing needed to obtain relief, and there is

no reason why they should bear the risk of suffering

further irreparable harm in the event of another

reclassification.” Diocese, 141 S. Ct. at 68-69.

A. The lower courts’ decisions do not follow

this Court’s controlling decisions.

Respectfully, the District Court’s ruling is manifestly wrong because Petitioners have a “reasonable

expectation” that Respondent may shut their schools

down again given her undisputed “mass exodus” concern.

And, Respondent fails to meet her longstanding

burden imposed by this Court of showing that it is

“absolutely clear” that she will never close Oregon’s

religious schools again during the ever-changing

pandemic. She makes no such promise. That is why

Petitioners are entitled to injunctive relief as a matter

of law—and the decision below should be reversed.

Indiana Employment Security Division v. Burney, 409

U.S. 540, 546 (1973) (“For a case to be moot it must be

‘absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.’ In this

case, appellants have hardly provided such assurance.” (citation omitted; emphasis added)). Trinity

Lutheran Church of Columbia v. Comer, 137 S. Ct.

2012, 2019, n.1 (2017) (“the Governor of Missouri

announced that he had directed the Department to

begin allowing religious organizations to compete for

and receive Department grants on the same terms as

secular organizations. That announcement does not

moot this case.” The “Department has not carried the

‘heavy burden’ of making ‘absolutely clear’ that it

could not revert to its policy of excluding religious

organizations.”). Vitek v. Jones, 445 U.S. 480, 487

(1980) (“it is not ‘absolutely clear,’ absent the

injunction, that the State’s alleged wrongful behavior

could not reasonably be expected to recur,” and “in the

posture of the case, it is not moot.”). St. Paul Fire &

Marine Ins. Co. v. Barry, 438 U.S. 531, 537-538 (1978)

(“Although later developments” may have “reduced

the practical importance of this case” for the parties,

“it cannot be said that subsequent events make it

absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.” (cleaned

up.)).

And see Brach, 6 F.4th at 919 (“the question is

whether the State has carried its ‘formidable burden

of showing that it is absolutely clear the allegedly

wrongful behavior could not reasonably be expected to

recur.’ California has failed to do so,” and “the State’s

coy assertion that it is ‘speculative’ whether it might

close schools again merely underscores the State’s

refusal even to say that it will not do so.” (citation

omitted, emphasis added)); see also Haney v. Pritzker,

No. 20-3653, 2021 WL 4402418 at *7 (N.D. Ill. September

27, 2021) (“Although Defendants have pointed to evidence tending to show that they are highly unlikely to

reimpose” closures again “because of the Coronavirus,

the pandemic is not over. The highly contagious Delta

variant, for example, has been spreading rapidly, prompting new lockdowns around the world.” Although

“many factors” suggest that the “chance of facing

renewed restrictions is minimal, there is still uncertainty about the future course of the pandemic.

Because of that uncertainty, it is not ‘absolutely clear’

that the restrictions Plaintiff is challenging could not

‘reasonably be expected to recur.’” And “the court

concludes that the progress that Illinois has made in

fighting the pandemic” has “not definitively rendered

Plaintiff’s case moot.” (citation omitted; cleaned up)).

B. Whether a “constant threat” of being

closed or restricted again must now always

be shown to obtain injunctive relief

during the pandemic is the subject of a

deep split among nine Courts of Appeals

that the Court should resolve through the

vehicle of this case.

Respectfully, the Court needs to clarify its “constant

threat” statements in Diocese and Tandon because—

at least as interpreted by several Courts of Appeals—

they conflict with the Court’s statement elsewhere

that “it is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of

the practice. If it did, the courts would be compelled

to leave the defendant free to return to his old ways.

In accordance with this principle, the standard we

have announced for determining whether a case has

been mooted by the defendant’s voluntary conduct is

stringent: A case might become moot if subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” The “heavy burden” of “persuading the court

that the challenged conduct cannot reasonably be

expected to start up again lies with the party asserting

mootness.” Friends of the Earth, Inc. v. Laidlaw

Environmental Services, Inc., 528 U.S. 167, 189 (2000)

(citations omitted; emphasis added; cleaned up). A

“defendant claiming that its voluntary compliance

moots a case bears the formidable burden of showing

that it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur.”

Id. (emphasis added).

And even if showing a “constant threat” is now

required in all cases to obtain injunctive relief because

of Diocese and Tandon, the fact that spikes and falls

in the spread of the Coronavirus in Oregon and

elsewhere are still ongoing (like the Delta variant),

combined with Respondent’s undisputed (1) “mass

exodus” and (2) “no free FEMA masks for you” hostility

to religious schools, puts Petitioners under a “constant

threat” of being unconstitutionally shut down or

restricted again.

And “the loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373

(emphasis added).

C. This case involves an issue of national

importance regarding the status of fundamental First Amendment rights during

the pandemic, and protecting religious

entities against state governors intentionally trampling on those rights. And it

is the subject of a lot of litigation

nationwide.

Respondent’s overt hostility to religious schools is

confirmed by, in 2020, making sure no private school,

thus including no religious school, received any of

the 5 million free KN-95 masks given to Oregon by

FEMA—and specifically designated for “all” schools.

Pet.App.25a-28a, 43a-44a, 49a-50a, 61a-62a. That is

unconstitutional. Trinity Lutheran, 137 S. Ct. at 2022;

Espinoza v. Montana Department of Revenue, 140 S.

Ct. 2246, 2252 (2020).

And Petitioners’ “reasonable expectation” about

what Respondent will do to them next got even worse

when, after going out of her way to make sure they did

not get any of the free FEMA masks intended for “all”

schools, she then mandated the use of masks indoors

all day at K-12 schools. Pet.App.71a-75a.

So, Respondent does not just “move the goalposts”

during the pandemic, Tandon, 141 S. Ct. at 1297.

Rather, she makes sure that some teams get to play

with goalposts—and must—but religious schools do

not get any goalposts. And then she feared that too

many people would go to Petitioners’ games, instead of

her games, if they were allowed to play—hurting her

“ticket sales.” So, she “cancelled the season.” Then,

being called out by this lawsuit and the repeated

wrongdoing it revealed, and with the season half over,

and the games not able to ever be replayed, she allowed

games to resume (at least for now).

Thus, through her (1) improper “mass exodus” concern; and (2) unconstitutional targeting of Petitioners

through undisputedly denying them free FEMA

masks—and then (3) requiring the use of masks

indoors all day at K-12 schools—Respondent shows

that Petitioners’ “reasonable expectation” of what

she will do to them next, including shutting them

down again, is justifiably really bad. Respondent is a

“constant threat” to Petitioners.

The Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and

forbids hostility toward any.” Lynch v. Donnelly, 465

U.S. 668, 673 (1984) (emphasis added). “Indeed, we

have observed” that “such hostility would bring us into

‘war with our national tradition as embodied in the

First Amendment’s guaranty of the free exercise of

religion.’” Id. (citation omitted).

And “the Free Exercise Clause commits government

itself to religious tolerance, and upon even slight

suspicion that proposals for state intervention stem

from animosity to religion or distrust of its practices,

all officials must pause to remember their own high

duty to the Constitution and to the rights it secures.

Those in office must be resolute in resisting

importunate demands.” Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993)

(emphasis added). Thus, “the Free Exercise Clause

bars even ‘subtle departures from neutrality’ on

matters of religion.” Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Com’n, 138 S. Ct. 1719, 1731

(2018) (citing Lukumi); and see Diocese, 141 S. Ct. at

66 (“Citing a variety of remarks made by the Governor,

Agudath Israel argues that the Governor specifically

targeted the Orthodox Jewish community.”).

Quite simply, it is undisputed that the Governor of

Oregon is even more overtly hostile to religion than

Governors Cuomo (New York) and Newsom (California),

the subjects of Diocese and Tandon, respectively.

And now, only this Court can make Respondent stop,

and prevent further irreparable injury to Petitioners.

Injunctive relief is warranted. “The applicants have

made the showing needed to obtain relief, and there is

no reason why they should bear the risk of suffering

further irreparable harm in the event of another

reclassification.” Diocese, 141 S. Ct. at 68-69 (emphasis

added).

And doing so will resolve the deep split among nine

Courts of Appeals in this extremely “hot” area of

constitutional litigation.

Also, Petitioners seek the nominal damages they are

entitled to recover as a matter of law for Respondent’s

violations of their constitutional rights. Buckhannon,

532 U.S. at 603-604.

So, the Court’s recent decision in Uzuegbunam v.

Preczewski, 141 S. Ct. 792 (March 8, 2021), respectfully, shows the District Court’s dispositive legal error

in holding that Petitioners’ case is moot because

Oregon K-12 schools are currently reopened for onsite

education. Pet.App.7a-18a. In his concurring opinion

in Uzuegbunam, Justice Kavanaugh states: “I agree

with the Court that” a “plaintiff’s request for nominal

damages can satisfy the redressability requirement for

Article III standing and can keep an otherwise moot

case alive.” Uzuegbunam, 141 S. Ct. at 802.

D. Respondent’s school closure directives

and Executive Orders do not satisfy the

Court’s requirements for strict scrutiny.

A state action that discriminates on the basis of

religion is subject to strict scrutiny and must be invalidated unless it is “justified by a compelling interest

and is narrowly tailored to advance that interest.”

Lukumi, 508 U.S. at 533. “Narrow tailoring” here

would have allowed religious schools to remain open

for in-person classes during the pandemic while using

hand sanitizer, masks, and social distancing—not

closing them because Respondent fears a “mass

exodus” to them from her schools. See Brach, 6 F.4th

at 909 (“Given the State closure order’s lack of narrow

tailoring, we cannot say that, as a matter of law, it

survives such scrutiny.”).

And for most of the Summer of 2020, Respondent

encouraged “Black Lives Matter” protesters to hold

First Amendment protests that severely damaged the

federal courthouse in Portland—and without any

safety precautions.1 But at the same time, she barred

religious schools from holding communal, in-person

classes, contrary to their undisputedly sincere and

First-Amendment-protected religious beliefs. That

also fails strict scrutiny. “Government regulations are

not neutral and generally applicable, and therefore

trigger strict scrutiny under the Free Exercise Clause,

whenever they treat any comparable secular activity

more favorably than religious exercise.” Tandon, 141

KGW8 News, Oregon State Police troopers leaving federal

courthouse in downtown Portland (Aug. 13, 2020), https://tinyurl.

com/yncp48kb; Statesman Journal, Scuffles break out as

opposing groups protest at Oregon Capitol Saturday (Aug. 15,

2021), https://tinyurl.com/4x22nmvh “many in the crowd did not

wear face coverings or maintain social distance.”

S. Ct. at 1296 (emphasis by the Court) (citing Diocese).

And see Spell, 962 F.3d at 181-183 (stating that the

Governor of Louisiana’s restriction on in-person attendance at church failed strict scrutiny in part because “it

is common knowledge, and easily proved, that protesters do not comply with social distancing requirements.

But instead of enforcing the Governor’s orders, officials are encouraging the protests.” If “protests are

exempt from social distancing requirements, then

worship must be too.” And “public officials cannot

devalue people of faith while elevating certain protesters. That would offend the First Amendment.” And

“government does not have carte blanche, even in a

pandemic, to choose which First Amendment rights

are ‘open’ and which remain ‘closed.’” “In these

troubled times, nothing would unify the American

people more than the principle that freedom for me,

not for thee, has no place under our Constitution.”

(Judge Ho, concurring)).

Moreover, concerning public K-12 schools also being

closed by Respondent last year—which is her primary

argument—“it is no answer that a State treats some

comparable secular businesses or other activities as

poorly as or even less favorably than the religious

exercise at issue.” Tandon, 141 S. Ct. at 1296.

E. Petitioners satisfy all other injunction

requirements. So, the Court should grant

certiorari and reverse.

Petitioners satisfy the “irreparable injury” requirement to obtain injunctive relief, and this case is not

moot. That is because of their “reasonable expectation” that Respondent may again prohibit them from

holding in-person classes at her whim given, for

example, the recent spread of the Delta variant.

And “the loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373.

And Petitioners’ request for and entitlement to

nominal damages is another reason this case is not

moot. “So long as the plaintiff has a cause of action for

damages, a defendant’s change in conduct will not

moot the case. Even then, it is not clear how often

courts will find a case mooted: ‘It is well settled that

a defendant’s voluntary cessation of a challenged

practice does not deprive a federal court of its power to

determine the legality of the practice’ unless it is

‘absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur.’” Buckhannon,

532 U.S. at 608-609 (citations omitted).

The balance of equities also weighs heavily in Petitioners’ favor. They are willing to safely operate their

schools through social distancing, hand sanitizer, and

masks. Also, this year, a great number of students and

staff have been vaccinated against Covid-19. And

there is no evidence that any K-12 student in Oregon

has died of Covid-19, or that any student at a religious

school in Oregon has even contracted it at school.

And Petitioners will suffer further irreparable injury

absent injunctive relief because Respondent has shown

animus to them through her undisputed “mass exodus”

from her public schools concern, and denying them

free FEMA masks specifically designated for “all”

schools. Pet.App.25a-28a, 43a-44a, 49a-50a, 61a-62a.

And she has unbridled authority to shut Petitioners

down again at any time, and without notice. Therefore, the equities heavily weigh in favor of granting

certiorari and injunctive relief, and upholding Petitioners’ fundamental First Amendment rights.

And “there is the highest public interest in the

due observance of all the constitutional guarantees.”

United States v. Raines, 362 U.S. 17, 27 (1960). That

includes the free exercise of religion, which “the

text of the First Amendment itself . . . gives special

solicitude.” Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. E.E.O.C., 565 U.S. 171, 189 (2012).

And see Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

Cir. 2012) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”).

The Court should grant certiorari and clarify that

not every entity in every case has to show a “constant

threat” of a governor or other state official closing or

otherwise restricting them again to obtain injunctive

relief during the pandemic. Rather, a defendant has

the “formidable burden” to make it “absolutely clear”

that the closure or restriction will never recur.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JOHN KAEMPF

Counsel of Record

KAEMPF LAW FIRM PC

2021 SW Main St. Ste. 64

Portland, OR 97205

(503) 224-5006

john@kaempflawfirm.com

Counsel for Petitioners

October 15, 2021

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: MEMORANDUM, 9th Circuit

Court of Appeals (August 2, 2021) ..................

APPENDIX B: MANDATE, 9th Circuit Court

of Appeals (September 8, 2021) .......................

APPENDIX C: MINUTES OF PROCEEDINGS/ORDER, District Court, District of

Oregon (December 31, 2020) ...........................

APPENDIX D: TRANSCRIPT OF PROCEEDINGS, District Court, District of Oregon

(December 31, 2020) ........................................

APPENDIX E: ORDER, 9th Circuit Court of

Appeals (August 31, 2021) ...............................

19a

APPENDIX F: STARRETT DECLARATION,

District Court, District of Oregon (August 17,

2020) .................................................................

20a

APPENDIX G: KAEMPF DECLARATION,

District Court, District of Oregon (November

12, 2020) ...........................................................

22a

APPENDIX H: TRANSCRIPT OF PROCEEDINGS, District Court, District of Oregon

(November 17, 2020) ........................................

29a

APPENDIX I: KAEMPF

DECLARATION,

District Court, District of Oregon (September

15, 2021) ...........................................................

39a

APPENDIX TABLE OF CONTENTS

Page

APPENDIX J: Oregon K-12 Resiliency Framework (September 9, 2021) ................................

71a

APPENDIX K: NOTICE OF APPEAL, District

Court, District of Oregon (January 2, 2021) ...

76a

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed: Aug. 2, 2021]

————

No. 21-35005

————

HORIZON CHRISTIAN SCHOOL,

an Oregon nonprofit corporation; et al.,

Plaintiffs-Appellants,

KATE BROWN, Governor, State of Oregon,

Defendant-Appellee.

————

MEMORANDUM*

————

D.C. No. 3:20-cv-01345-MO

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted July 7, 2021**

Portland, Oregon

————

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Before: O’ SCANNLAIN, PAEZ, and BENNETT,

Circuit Judges.

Plaintiffs-Appellants, religious K-12 schools in Oregon

and parents of students who attend religious schools

in Oregon, appeal from the district court’s denial of

their renewed motion for a preliminary injunction

enjoining Oregon’s mandatory restrictions on in-person

schooling in response to the COVID-19 pandemic. We

have jurisdiction to review the district court’s denial of

a preliminary injunction under 28 U.S.C. § 1292(a)(1).

Reviewing for abuse of discretion, see Am. Trucking

Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th

Cir. 2009), we affirm.

To obtain a preliminary injunction, Plaintiffs were

required to demonstrate that: (1) they would be “likely

to succeed on the merits,” (2) they would be “likely to

suffer irreparable harm in the absence of preliminary

relief,” (3) “the balance of equities tips in [their] favor,”

and (4) “an injunction is in the public interest.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20-22 (2008).

The district court did not abuse its discretion in denying Plaintiffs’ motion for a preliminary injunction, as

it appropriately determined that Plaintiffs had not

shown they were likely to suffer irreparable harm

because, at the time of the district court’s decision on

December 31, 2020, Gov. Brown had already announced

that all restrictions on in-school instruction would

become advisory the next day.

Considering Gov. Brown’s announcement of a change

in policy, Plaintiffs failed to demonstrate that they

“`remain[ed] under a constant threat’ that [Gov. Brown]

will use [her] power to reinstate the challenged

restrictions.” Tandon v. Newsom, 141 S. Ct. 1294, 1297

(2021) (quoting Roman Cath. Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 68 (2020)). The circumstances

here are unlike those in Roman Catholic Diocese of

Brooklyn, where the Supreme Court held that the

plaintiffs, churches and synagogues, remained likely

to suffer irreparable harm despite a change in state

executive action in response to the COVID-19 pandemic. There, the applicants challenged a provision of

an executive order issued by the Governor of New York

that capped attendance at worship services in certain

geographic areas classified as “red” or “orange” zones.

Roman Cath. Diocese, 141 S. Ct. at 65-66. “After the

[plaintiffs] asked [the Supreme Court] for relief, the

Governor reclassified the areas in question from orange

to yellow,” enabling the plaintiffs to “hold services at

50% of their maximum occupancy.” Id. at 68. The

Court reasoned that the plaintiffs remained likely to

suffer irreparable harm because the overarching executive order capping attendance at worship services

remained in effect, such that “[plaintiffs] remain under

a constant threat that the area in question will be

reclassified as red or orange.” Id. The Court explained

that injury was likely to recur because the “Governor

regularly changes the classification of particular areas

without prior notice,” id., and cataloged eight instances

of unilateral classification changes in the previous

thirty-five days, id. at 68 n.3.

By contrast, the factors that led the Supreme Court

in Roman Catholic Diocese of Brooklyn to find irreparable injury remained likely—that the underlying

mandatory restriction remained in effect and that there

was evidence of the Governor’s practice of unilaterally

changing the classifications under the policy without

notice—are not present here. Instead, in the six months

following Gov. Brown’s imposition of Executive Order

20-29’s health metrics policy restricting in-school

instruction, she issued just one change to the policy,

with advance notice and backed by scientific and social

science reasoning: to make the health metrics and

corresponding restrictions on in-person schooling advisory rather than mandatory. These circumstances

demonstrate that Plaintiffs were not subject to a “constant threat” that Gov. Brown would prohibit them

from holding in-person classes. Id. at 68. Thus, the

district court did not err in determining that Plaintiffs

failed to show they were likely to suffer irreparable

harm or abuse its discretion in denying Plaintiffs’

renewed motion for a preliminary injunction.

AFFIRMED.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed: Sep. 08, 2021]

————

No. 21-35005

————

HORIZON CHRISTIAN SCHOOL,

an Oregon nonprofit corporation; et al.,

Plaintiffs-Appellants,

KATE BROWN, Governor, State of Oregon,

Defendant-Appellee.

————

D.C. No. 3:20-cv-01345-MO

U.S. District Court for Oregon, Portland

————

MANDATE

The judgment of this Court, entered August 02,

2021, takes effect this date.

This constitutes the formal mandate of this Court

issued pursuant to Rule 41(a) of the Federal Rules of

Appellate Procedure.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Jessica Flores

Deputy Clerk

Ninth Circuit Rule 27-7

APPENDIX C

U.S. District Court

District of Oregon (Portland (3))

CIVIL DOCKET FOR CASE #: 3:20-cv-01345-MO

Date Filed #

Docket Text

12/31/2020 78 MINUTES of Proceedings: Oral Argument held before Judge Michael W.

Mosman on 12/31/2020. Plaintiff's

Renewed Emergency Motion for Preliminary Injunction 56 is DENIED for

the reasons stated on the record. John

T. Kaempf (by telephone) present as

counsel for plaintiffs. Brian Simmonds

Marshall (by video) present as counsel

for defendant. Court Reporter: Ryan

White, (503) 326-8184. Judge Michael

W. Mosman presiding. (gw) (Entered:

12/31/2020)

APPENDIX D

[1] THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

————

No. 3:20-cv-01345-MO

————

HORIZON CHRISTIAN SCHOOL, AN OREGON NONPROFIT

CORPORATION; MCMINNVILLE CHRISTIAN ACADEMY, AN

OREGON NONPROFIT CORPORATION; AND LIFE

CHRISTIAN SCHOOL, AN ASSUMED BUSINESS NAME,

Plaintiffs,

vs.

KATE BROWN, GOVERNOR OF THE STATE OF OREGON, IN

HER OFFICIAL CAPACITY ONLY,

Defendant.

————

December 31, 2020

Portland, Oregon

————

TRANSCRIPT OF PROCEEDINGS

(Oral Argument)

BEFORE THE HONORABLE MICHAEL W.

MOSMAN UNITED STATES DISTRICT COURT

JUDGE

Court Reporter: Ryan White, RMR, CRR, CSR/CCR

United States District Courthouse

1000 SW 3rd Avenue, Room 301

Portland, Oregon 97204

(503) 326-8184

[2] APPEARANCES

For the Plaintiffs:

KAEMPF LAW FIRM PC

By: JOHN T. KAEMPF (by phone)

john@kaempflaw.com

1050 SW 6th Avenue, Suite 1414

Portland, Oregon 97204

(503) 224-5006

For the Defendant:

OREGON DEPARTMENT OF JUSTICE

By: BRIAN SIMMONDS MARSHALL (by video)

brian.s.marshall@doj.state.or.us

100 SW Market Street

Portland, Oregon 97201

(971) 673-1880

[3] (December 31, 2020; 10:01 a.m.)

PROCEEDINGS

THE CLERK: Your Honor, this is the time set for

oral argument on plaintiff’s emergency motion for

preliminary injunction, docket number 56, in case

number 3:20-cv-01345-MO, Horizon Christian School,

et al, versus State of Oregon.

Counsel, please identify yourselves beginning with

plaintiff.

MR. KAEMPF: This is John Kaempf for the plaintiffs. Thank you.

MR. MARSHALL: Good morning. This is Brian

Marshall for the defense.

THE COURT: Thank you all for being available

today. Thank you for the work you put in to briefing

this matter on Monday the 28th.

I apologize for the requirement that over the

Christmas holiday some work had to be done. I was

reluctant to do so, but felt it unavoidable in light of the

class schedule that is at issue in this case. So I

appreciate the work that was done.

I want to lay out my tentative thoughts here and

then I’ll hear from the parties.

We are, of course, here looking at this case sort of

[4] telescopically. We talk about the merits quite a bit,

but that really matters only in terms of evaluating

likelihood of success on the merits, and what we’re

really talking about is the four-factor test for obtaining

a preliminary injunction in this case.

And so the parties agree, and Winter makes

clear, that the governing standard requires plaintiffs

seeking a preliminary injunction to demonstrate

that irreparable injury is likely in the absence of an

injunction, and that here, that question is the central

question in this case today.

And the underlying factual scene for that – for

answering that question has changed significantly

during the pendency of the litigation, and as the

exhibit attached to the declaration in the government’s supplemental brief makes clear, that – that

exhibit being the letter of Governor Brown to OHA and

others, E029, which madatorily, under certain factual

underpinnings, prohibited in-person classes for plaintiffs and, in fact, for K-through-12 education generally

in the state of Oregon – that has been not just for our

plaintiffs and not just for faith-based K-through-12

schools, but for all K-through-12 education – has been

made advisory only.

Whatever that may mean in other settings, what it

almost certainly means in our case is that plaintiffs

10a

can, on Monday, if they choose, and if they meet the

other factors set forth by executive order which aren’t

in dispute here such as [5] number of persons and

distancing and masks, et cetera, none of which has

been disputed by either side here – so if they meet

those, they can hold school on Monday and will not be

subject to state – excuse me, I’m sorry – will not be

subject to state enforcement action of any kind as a

result of that decision.

I should digress briefly here for a moment and state

that that means that my understanding of the current

scenario is different from what plaintiffs’ counsel has

suggested which is that they actually cannot meet

until February 15th, and that appears to me to be a

fundamental and, quite frankly, rather obvious misreading of what’s being said in the letter.

Since the change isn’t just for plaintiffs, but for the

entire educational system in the state of Oregon, what

the governor pretty clearly is stating is that it is

immediately – that is certainly by tomorrow – advisory

only, any limitation on in-person instruction, and that,

in fact, all schools, particularly those run by the state,

have to gear up and get ready to meet the goal of

holding in-person instruction by February 15th.

Is there any way in which I’m misreading that, Mr.

Marshall, in your view?

MR. MARSHALL: No, Your Honor. The Court’s –

the Court’s reading is exactly correct of the letter.

I can also say that if the Court were to look at the

link in – that is referenced in footnote 1 of the state’s

brief [6] that was filed last Monday, the updated

guidance also says that as well, that beginning

January 1, 2021, the section of Ready School, Safe

11a

Learners guidance shifts from a mandatory requirement to advisory recommendations.

As the Court has noted, the February 15th date is

an aspiration for schools, and her hope is that elementary schools in particular are capable of meeting that

date. But as the Court has said, the plaintiffs can

reopen tomorrow as can any other school.

THE COURT: So that’s how I see the alteration in

the lay of the land. It’s a shift, rather fundamental

shift, not only allowing our plaintiffs to meet, but, in

fact, starting up the engine of the state educational

system in order to encourage it to hold in-person

instruction, I suppose, a fair reading of it is ASAP, no

later than February 15th to try to get going. That’s a

pretty fundamental shift.

And on its face, I would say – for today’s purposes, I

would say a superficial reading of it is that it would

erase the likelihood of irreparable injury as it’s not

likely to occur. And plaintiffs have responded to that

with a serious argument, and that argument is that

this isn’t the first time we’ve ever seen anything like

that happen in litigation, and there’s a body of cases

that deal with it. And the idea is that, you know, a

litigant – I’m not talking about our case now, but a

litigant is not really allowed to avoid impending [7]

doom, a loss, and an injunction by shifting its position

and granting plaintiff what it sought in litigation

and then arguing some form of mootness or unlikely

harm. And that’s true also, as far as it goes, and is

particularly true where it’s perceived as sort of a

litigation tactic.

There are three reasons why I don’t think that argument carries the day for plaintiffs today in our case.

12a

The first is that I think the state has done a helpful

job of distinguishing the cases that are most on point,

and that is those cases that are having to do with

pandemic restrictions on faith-based institutions and/

or schools. And in cases in which there has been some

radical shift in state executive orders or otherwise,

those cases, at least in the current pandemic, have

involved changes that left serious questions still

outstanding.

So for example, in New York, the only change that

really happened was sort of the factual toggle up,

toggle down from – I think it was from red to orange,

or something like that, in terms of risk factors allowing

or not allowing opening, and those could change overnight, and the underpinnings of the law, the structure

in which schools could be closed, hadn’t really dramatically changed.

In California, while there were some changes regarding in-person instruction, there were other fundamental

rules that were in dispute. The “other rules” category

in our case [8] involves things that are not disputed by

the plaintiff, they don’t get in the way of the kind of

education plaintiff wants to provide, and so we don’t

have that setting here.

Perhaps more fundamentally, these cases either get

at litigation shifts that leave open questions, or they

get at litigation shifts that are just that, sort of tactical

moves in litigation to try to avoid an injunction. And

what’s happened here seems unlikely to be that. If

what had happened is if in the pendency of litigation

Governor Brown had said, “Well, I see that Judge

Mosman’s, you know, holding a hearing on

December 31st and it doesn’t look good for us so

I’m going to allow faith-based institutions to hold

13a

K-through-12 education in person,” that would be a

different story.

But here, what has happened has been a shift in the

governor’s view about the merits of in-person education for – across the whole spectrum of K-through-12

education, and a shift that takes a look both at the

altered scientific information on the risks of in-person

education for K through 12, and similarly, the altered

scientific information about the – about the harms

associated with the lack of in-person training, the

mental health and other harms associated with a lack

of in-person education for K-through-12 kids.

And so it seems to me unlikely that the broad tool of

altering the rule for all K-through-12 education would

be the tool that a person seeking a tactical advantage

in this [9] particular litigation would use. I guess not

impossible, but in my view, implausible.

The third is sort of on a different score, and that is

that the cases that talk about the need to nevertheless

rule on the merits of an injunction despite a change in

the posture of the defendant talk about the fact that a

plaintiff has sought relief and then on the eve of

litigation is told they can’t get relief, and then if things

were to go against that plaintiff again, if the defendant

were to flip-flop again, the plaintiff would be under the

necessity of sort of gearing up the whole slow-moving

wheel of justice to get to relief and would in that period

of time once again be deprived of important constitutional rights.

And here, it’s true, as defendant has suggested,

perhaps even more true than defendant is aware, that

very little time would have to be spent if, you know,

February 10th in-person education was once again

taken off the table by the state. I mean, I feel that,

14a

were I called upon to do so, I could rule on the merits

today.

And so if on – if at 8:00 on the morning of

February 10th it once again became necessary to

rule upon the merits, I feel like I could rule on the

merits by noon that same day, and would be ready,

willing, and able to do so if that was what was necessary in this case. So there would really be no passage

of time in this case whereby an altered position down

[10] the line would place plaintiffs in the situation of

losing valuable time without the exercise of important

constitutional rights.

So for those three reasons, I don’t believe plaintiffs

can meet the standard by which they have to demonstrate that irreparable injury is likely in the absence

of an injunction. It appears that they suffer no irreparable injury under the current regime, only if it changes

would they suffer it, and I’m prepared to make sure

that if that happens, we get something approaching

same-day resolution.

With that in mind, I’ll turn to plaintiffs as to

whether they have anything contrary to offer. If not, I

intend to deny injunction for the failure to show

irreparable injury.

Mr. Kaempf?

MR. KAEMPF: Yes. Thank you, Judge.

One thing, if I could just get clear, then, for the

record, I’m hearing the Court state that all K-through12 schools in Oregon – religious, private, secular – as

you read it and I believe the governor’s lawyer now has

stipulated, they can all reopen for in-person education

this Monday. Am I correct?

15a

THE COURT: Yes. I mean, there are other limitations, as you have acknowledged previously. I don’t

believe that’s ever been the subject of any argument.

But the limit on in-person has been rendered voluntary,

and any school that’s [11] ready, any school – your

clients or, you know, West Linn High School – that’s

ready, can do so right away, and, in fact, they’re

encouraged to make sure they get ready so that they

can do so no later than February 15th.

MR. KAEMPF: So therefore, Your Honor – thank

you. John Kaempf again.

Every K-to-12 school in Oregon – because I want –

they had mentioned something about establishment

clause violation, and I certainly don’t want that, I’m

not asking for that. I’m asking for clarification, and it

sounds like you just gave it, that whether it’s religious

or private or public or secular, it doesn’t matter, all Kto-12 schools that are ready can now open for in-person

classes full time beginning Monday, January 4th,

2021. Correct?

THE COURT: That’s correct, sir.

MR. KAEMPF: Okay. Thank you, Your Honor.

May I address a few things on your tentative ruling?

THE COURT: Yes.

MR. KAEMPF: On irreparable injury, I think it’s –

I would hope it would be acknowledged that my clients

had an irreparable injury since March, approximately,

when things were closed down. And as you know from

the Elrod v. Burns case from the Supreme Court in

1976, the court made clear that the deprivation of a

constitutional right for even a minimal period of time

is, as a matter of law, an irreparable injury.

16a

[12] So I wanted to make sure I understand what

you’re saying that, okay, all these schools that are

ready can reopen for in-person classes beginning on

Monday, but there’s been an irreparable injury to my

clients all year that I do think needs to be acknowledged and is a reason why we wanted to get an

injunction from you because –

(Indistinguishable crosstalk.)

THE COURT: You don’t get an injunction for past

harm. So to the degree still currently unresolved as to

the existence of past harm, it doesn’t get you an

injunction. You have to show likely future harm. Not

that past harm is unimportant, it goes to your

underlying case, but it doesn’t get you an injunction.

MR. KAEMPF: Yes. Could I flesh out just a little bit

more, Your Honor?

If, hypothetically, the state was to say at some point

in 2021, look, we’re – the governor’s changing her mind

and now we’re not going to allow schools to have

in-person classes anymore, we would be able to get a

ruling from you on some expedited basis. Is that what

I heard?

THE COURT: I don’t know why you need that

fleshed out. I couldn’t have been more clear.

MR. KAEMPF: And I’m sorry, Judge. I was trying to

take my notes there and I appreciate it. Okay. That’s

fine. I’ll get the transcript from the reporter.

[13] THE COURT: I made it very clear you could get

expedited relief.

MR. KAEMPF: Good. Thank you, Judge.

The other thing I would mention is that I wanted to

make – on the record, on your tentative points, is in

17a

the Diocese of Brooklyn case from the Supreme Court

just a few weeks ago, the court relied on the fact that

the plaintiff churches – the phrase was “constant

threat,” they were under a constant threat from Governor

Cuomo that he might change the restrictions, and

that’s something that we also rely on here as to the

irreparable injury.

And then the other point, if I could, on the element,

Your Honor, of succeeding on the merits of the claim?

Or if you don’t want me to –

THE COURT: The whole argument has been on

likelihood of harm. I’m not going to rule on likelihood

of success on the merits since I’m basing my whole

ruling on the idea that you cannot show likelihood of

irreparable harm coming to you in the future.

MR. KAEMPF: Okay.

(Indistinguishable crosstalk.)

THE COURT: There are other factors; balance of

hardships –

MR. KAEMPF: What I wanted to know is –

THE COURT: We’re not dealing with those right

now.

[14] MR. KAEMPF: Okay. Then I have nothing

further, Judge, and I thank you very much.

THE COURT: Thank you.

That is my ruling. I find the plaintiff has not met its

showing of likelihood of irreparable harm. I make no

ruling on the other factors since it’s really a complete

turnaround, quite frankly, in terms of events on the

ground, a victory of sorts for plaintiff, and that’s – it’s

the victory itself that takes away the likelihood of

irreparable harm. They’ll get to open up on Monday if

18a

they’re ready, and no harm will come to them for

opening up. Should that change, then this case is still

pending before me in this court.

Anything further from you, Mr. Marshall?

MR. MARSHALL: No, Your Honor.

THE COURT: Thank you all.

We’ll be in recess.

(The proceedings concluded at 10:21 a.m.)

19a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed Aug. 31, 2021]

————

No. 21-35005

————

HORIZON CHRISTIAN SCHOOL, an Oregon

nonprofit corporation; et al.,

Plaintiffs-Appellants,

KATE BROWN, Governor, State of Oregon,

Defendant-Appellee.

————

D.C. No. 3:20-cv-01345-MO

District of Oregon, Portland

————

ORDER

Before: O’SCANNLAIN, PAEZ, and BENNETT,

Circuit Judges.

The panel has voted to deny the petition for

rehearing and to deny the petition for rehearing en

banc.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for panel rehearing and the petition for

rehearing en banc are DENIED.

20a

APPENDIX F

UNITED STATES DISTRICT COURT DISTRICT OF

OREGON PORTLAND DIVISION

————

Civil No. 3:20-cv-01345

————

HORIZON CHRISTIAN SCHOOL, an Oregon nonprofit

corporation; MCMINNVILLE CHRISTIAN ACADEMY,

an Oregon nonprofit corporation; and

LIFE CHRISTIAN SCHOOL, an assumed business name,

Plaintiffs,

KATE BROWN, Governor of the

State of Oregon, in her official capacity only,

Defendant.

————

DECLARATION OF MARY STARRETT IN

SUPPORT OF PLAINTIFFS’ EMERGENCY

MOTION FOR TEMPORARY RESTRAINING

ORDER AND PRELIMINARY INJUNCTION

————

John Kaempf, OSB #925391

KAEMPF LAW FIRM PC

1050 S.W. Sixth Avenue

Suite 1414

Portland, Oregon 97204

Telephone: (503) 224-5006

Email: john@kaempflawfirm.com

Attorney for Plaintiffs

21a

I, Mary Starrett, testify as follows: I am over 18

years of age and of sound mind, and I have personal

knowledge of all matters herein. On July 29, 2020, in

my capacity as a Yamhill County Commissioner, I

participated in a weekly call with the Oregon

Governor’s (Defendant’s) Office Spokespersons Leah

Horner and Jody Christiansen. During the call, I

inquired about Oregon school re-opening guidelines

and asked why private and parochial schools are not

being permitted to re-open. Ms. Horner responded by

saying there was a concern about “a mass exodus from

public schools” if private schools are allowed to re-open

when the public schools are not.

I declare under penalty of penury that the foregoing

is true and correct. Executed on August 12, 2020.

/s/ Mary Starrett

Mary Starrett

22a

APPENDIX G

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

[Filed 11/12/20]

————

Civil No. 3 :20-cv-01345-MO

————

HORIZON CHRISTIAN SCHOOL, et al.,

Plaintiffs,

KATE BROWN, Governor of the

State of Oregon, in her official capacity only,

Defendant.

————

DECLARATION OF JOHN KAEMPF IN

SUPPORT OF PLAINTIFFS’ EMERGENCY

MOTION FOR PRELIMINARY INJUNCTION

————

John Kaempf, OSB #925391

KAEMPF LAW FIRM PC

1050 S.W. Sixth Avenue

Suite 1414

Portland, Oregon 97204

Telephone: (503) 224-5006

Email: john@kaempflawfirm.com

Attorney for Plaintiffs

23a

1. I, John Kaempf, testify as follows: I am over 18

years of age and of sound mind, and I have personal

knowledge of all matters herein. I am an attorney, and

I represent the Plaintiffs in this case.

2. Attached as Exhibit A is a true copy of Yamhill

County Commissioner Mary Starrett’s August 5, 2020

Facebook post. Ms. Starrett states: “I asked the

Governor’s spokesperson today why parochial and

faith-based schools were not being allowed to reopen

once they submitted their plans to keep kids safe. Her

response: ‘We don’t want to see a mass exodus from

the public schools.’”

* * *

24a

Exhibit A

25a

Exhibit F

Thursday, July 23, 2020

Colt Gill

>Good morning.

>I think you are aware that we were able to land 5

million non-medical kn95 face coverings.

>I plan on distributing these to school districts with a

formula based on enrollment with a weighting for

poverty.

<I did not plan on providing any to private schools But,

Mark Siegel asked.

What are your thoughts on this. 6:34AM

Colt Gill

> Also, want me to join your MAC meeting at 8:30 or

earlier? I’m available as needed. 6:34AM

8:15 would be great. Do you have time at 9 for a quick

1-on-1 check in? 7:02AM<

26a

Exhibit G

MYOREGONNEWS

News from the State of Oregon

Ready Schools, Safe Learners

Face Coverings Ready for Schools

By Peter Rudy on July 28, 2020

https://www.myoregon.gov/2020/07/28/face-coveringsready-for-schools/

Oregon Dept. of Education quickly distributes 5 million

face coverings to schools and childcare providers

around the state

SALEM – In response to mounting evidence that face

coverings are effective in mitigating the spread of

COVID-19, the July 22 update of the Ready Schools,

Safe Learners Guidance for the 2020-21 School Year

includes a new requirement for face coverings for all

students in grades kindergarten and up and all staff.

To help school districts meet this new requirement in

case of hybrid or fully on-site classes, the Oregon

Department of Education (ODE) is distributing five

million face coverings to school districts, for use by

students and staff. Having face coverings alone do not

fully prepare a school to return to in-person instruction. The supply of face coverings complements schools’

ongoing efforts to keep students and staff safe and

healthy and is one of many factors in any school’s

individual plan to return to in-person instruction.

How ODE acquired the face coverings is a testament

to the spirit of cooperation among federal, state, and

local government agencies to help Oregon families

during a pandemic.

27a

It started when ODE and numerous other state

agencies joined the Oregon Emergency Coordination

Center (ECC) in mid-March via daily meetings to

ensure services were reaching Oregonians during

stay-at-home orders across the state. Staff from the

Federal Emergency Management Agency (FEMA) joined

these meetings and offered help with federal services

where it was needed in Oregon. In July FEMA

representatives contacted the Oregon Department of

Administrative Services (DAS) Procurement team to

offer KN95 Face Masks to schools. FEMA had KN95

Face Masks they were making available to the first

states to request them. Oregon made a request for

five million and received the requested amount. (ODE

defines these products as face coverings and not masks,

as they are not considered medical-grade masks.)

Within days, a total of 15 semi-trucks started arriving

in the state loaded with 16,000 face coverings per

pallet and 21 pallets per 54 foot semi-trucks. They

are stored at state and local storage facilities around

the Salem-Keizer area. ODE plans to partner with

Education Service Districts (ESDs) and Department of

Corrections trucks and drivers to deliver masks for all

schools. Local students, teachers and staff will benefit

from a partnership that began with FEMA, needed

multiple state agencies for storage and delivery and

ultimately benefitting local public schools.

“Over the last four months we’ve seen so many

examples of cooperation between state, federal and

local agencies that have helped Oregon families,” ODE

Policy Analyst Terri Ward said. “I’m inspired by everyone’s attitude of ‘How can I help to make this happen?’”

“This is a team effort,” ODE Director Colt Gill said.

“We’re thankful to FEMA, the ECC, DAS, the SalemKeizer School District, and each of our 19 education

28a

service districts (ESDs) for their substantial support

in acquiring, storing and distributing these face

coverings. This effort will boost school districts’ efforts

to keep their students and staff healthy and safe and

help ensure that access to face coverings will not

become a barrier to meeting the new requirement.”

About Author

Peter Rudy

Peter Rudy is a Public Affairs Specialist at Oregon

Department of Education

29a

APPENDIX H

[1] IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

————

Case No. 3:20-cv-01345-MO

————

HORIZON CHRISTIAN SCHOOL, an Oregon nonprofit

corporation; MCMINNVILLE CHRISTIAN ACADEMY,

an Oregon nonprofit corporation; and

LIFE CHRISTIAN SCHOOL,

an assumed business name, et al.,

Plaintiffs,

KATE BROWN, Governor of the

State of Oregon, in her official capacity only,

Defendant.

————

November 17, 2020

Portland, Oregon

————

Preliminary Injunction Hearing

(By Videoconference)

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE MICHAEL W. MOSMAN

UNITED STATES DISTRICT COURT JUDGE

————

30a

[2] APPEARANCES

FOR THE PLAINTIFFS:

Mr. John T. Kaempf

Kaempf Law Firm, PC

121 S.W. Morrison Street, Suite 1100

Portland, OR 97204

FOR THE DEFENDANT:

Mr. Marc Abrams

Mr. Brian Simonds Marshall

Oregon Department of Justice

100 S.W. Market Street

Portland, OR 97201

COURT REPORTER:

Bonita J. Shumway, CSR, RMR, CRR

United States District Courthouse

1000 S.W. Third Ave., Room 301

Portland, OR 97204

(503) 326-8188

[3] INDEX

(November 17, 2020)

PLAINTIFFS’ WITNESSES

MARY STARRETT

Direct Examination by Mr. Kaempf

Cross-Examination by Mr. Abrams

* * *

[27] specifically my Document Request No. 31. It says,

“all communications with Jody Christensen,” one of

the governor’s aides, and they attended this August

5th mass exodus meeting where Ms. Starrett was there,

and, anyway, Leah Horner attended that. But the

point is Jody Christensen – it said all communications

31a

with Jody Christensen that contained the phrase

“mass exodus.” I thought that was a very clear and a

very specific request. And so they didn’t produce it to

me. And then I get in the middle of Ms. Christensen’s

deposition, I was polite but I had to ask her 58 questions. We went around and around and around until

she finally conceded, okay, Yamhill County Commissioner

– just like Ms. Starrett – Mr. Casey Kulla, yeah, she

says, I don’t remember, I don’t recall, I don’t know, but

he did send me a text and it was about a quote, but I

don’t remember.

Now, come on here. It said – it was from Commissioner Kulla, and he said, hey, did Leah Horner really

say that the governor is worried about a mass exodus

from public schools to private schools?

And when Mr. Abrams just told you right there, hey,

I didn’t hide it from him, I gave it to him right away

after her deposition, that’s my point. How did he have

it at his fingertips when it was directly responsive to

No. 31, and was able to immediately give it to me?

THE COURT: I’m going to pause you there for a [28]

moment.

MR. KAEMPF: Okay.

THE COURT: Thank you.

So this portion of your argument doesn’t help me

in today’s preliminary injunction hearing at all. You

have the quote. There’s two things important about

the money quote you’re relying on. One is that you

have it. You’ve briefed it, you’ve given it to the Court,

and I’m prepared now to consider it for whatever

purposes I ought to consider it.

32a

And, two, there’s no dispute about the quote. No one

is saying it wasn’t said. We have exactly what was

said, and both sides seem to agree on what was said.

So I don’t mean to cut off any evidence, but I guess I

don’t need to hear from your witness because your

witness is going to tell me what was said, and I already

think I know what was said, and I already think the

State has conceded that that is precisely what was

said.

* * *

[35] * * *

THE COURT: Mr. Kaempf, did you have something

you wanted to add?

MR. KAEMPF: Yes. Thank you, Judge.

If you could – I mentioned I wanted to call Ms.

Starrett as a witness. I will not waste your time, of

course. If you’re telling me that not only were you fine

that Leah Horner at the August 5th meeting of county

commissioners, in response to her question why aren’t

parochial schools being allowed to reopen, and Ms.

Horner said because the governor fears a mass exodus

from public schools if that happens, if that’s your

finding here today, I won’t call her, but if Mr. Abrams

looks like he’s going to contest it or something, which

is what they did in the briefs, then we would ask the

Court’s permission and I would call her as a witness

right now if you would allow me.

THE COURT: You can call her as a witness, just

don’t wander around. Get right to the point with her.

[36] MR. KAEMPF: Oh, no. It will be quite targeted,

I promise, Your Honor.

33a

Okay. And if the reporter could swear in Ms.

Starrett as a witness, please.

THE COURT: Go ahead.

THE COURTROOM DEPUTY: Please raise your

right hand.

MARY STARRETT

called as a witness in behalf of the Plaintiffs, being

first duly sworn, is examined and testifies as follows:

DIRECT EXAMINATION

BY MR. KAEMPF:

Q. Ms. Starrett, can you give Judge Mosman your

full name for the record.

My name is Mary Starrett.

Q. And I know it’s not right to ask a woman her

age, at least in my generation, but I’ll just ask you that

for the record, please.

A. I was born in 1954. I’m 66 years old.

Q. What is your current occupation?

A. I’m a Yamhill County commissioner vice-chair.

Q. How long have you held that position?

A. Going on seven years.

Q. As part of your job as the Yamhill County

commissioner, [37] and including the summer of 2020,

did you participate in a weekly conference call on

Wednesdays with representatives of Governor Brown?

Yes.

Q. And do you recall that there was an August 5th

weekly conference call that was led in part by Ms.

Leah Horner?

34a

Yes.

Q. And in that day, that August 5th conference

call, did that lead to you making a posting on your

public Facebook page?

Yes.

Q. All right. Ms. Starrett, I will walk over there

and I will hand you what has been marked as Exhibit

A in this case and ask you to take a look at it. Okay?

Yes.

Q. Ms. Starrett, if you could please tell the Court

what Exhibit A is and if you recognize it.

A. I’m reading a copy of a Facebook post from

August 5th.

Q. And what does it state?

MR. ABRAMS: I’m going to object on the grounds of

hearsay, Your Honor.

THE COURT: Overruled.

Go ahead.

BY MR. KAEMPF:(continuing)

Q. Ms. Starrett, let me first ask you, the Exhibit A

that you’re holding, is that an August 5th, 2020

Facebook post?

[38] A. Yes.

Q. Who wrote it?

A. I did.

Q. What does it state, please?

A. “Travel restrictions likely announced next week.

No details besides they will probably involve air

travel. As the threat of a ‘rollback’ to Phase 1 looms

35a

for Yamhill and other counties, I asked the governor’s

spokesperson today why private, parochial and faithbased schools were not being allowed to open once

they’d submitted their plans to keep kids safe. Her

response, ‘We don’t want to see a mass exodus from

the public schools.’”

Q. Ms. Starrett, is your Facebook post of August

5th true?

Yes.

Q. Why did you write it?

A. I wrote it because typically after each meeting

with the governor’s spokesperson, Leah Horner and

Jody Christensen, I would report to my constituents

what the content of that conversation was, and as soon

as that was over, it was jarring enough and stunning

enough and telling enough, quite frankly, that I didn’t

wait to post it.

Q. Why, using your words, was it jarring and

stunning to you?

A. Because week after week I’d asked for some

guidance on how our constituents in private schools

and their children would be able to increase their

chances of getting their kids back to [39] school. They

were concerned that the schools would have to close if

there was no forthcoming tuition, they didn’t have tax

dollars to keep the schools open, and I was asking

every week how we could facilitate that, how we could

get to yes, and so every week I asked a little bit of a

different question of how do we do that. And when I

got that answer, I thought, well, that’s telling.

Q. How soon after the August 5th weekly conference call with county commissioners did you post your

Facebook post marked as Exhibit A?

36a

A. I would say immediately when the call had

ended.

Q. Why did you do that immediately?

A. Because to me it was sort of a stunning

revelation, and it was one of those things that I wanted

to share with my constituents who had been asking me

for some kind of a liaison or go between or relief for the

fact that the schools were not appearing to be able to

open.

Q. When you in Exhibit A, your Facebook post,

reference that the governor’s spokesperson made this

comment about mass exodus from public schools, who

is that person?

A. Leah Horner.

Q. Please tell the Court as best you can recall

specifically, now moving just to your memory and not

just the Facebook post, on August 5th, during the

conference call, specifically what did you ask or say

to Ms. Horner that caused her to make this [40]

statement about the mass exodus from public schools?

A. I said to her that I had been advised that our

private parochial schools had checked the boxes, met

the guidelines that were asked, and were still being

denied the ability to open, and that I was wondering

what it was going to take for us to get the schools open

and why was there a prohibition or such a staunch

refusal to allow the parochial schools to open since

they’d met those guidelines per ODE.

Q. And when you said that, did she respond

immediately, essentially, to what you asked about?

Yes.

37a

Q. So she went straight to this mass exodus from

public schools comment, right?

Yes.

Q. All right. And when you heard that, were you

upset or pleased?

A. I was –

MR. ABRAMS: Objection. Relevance.

THE COURT: Overruled.

Go ahead.

BY MR. KAEMPF:(continuing)

Q. Go ahead. You were what?

Stunned.

Q. And why were you stunned?

THE COURT: I don’t need to hear more about that.

Do [41] you have more you want to ask this witness?

MR. KAEMPF: No, that’s fine, Your Honor.

I would also ask just one last question.

BY MR. KAEMPF:(continuing)

Q. How many other commissioners do you recall

being on that call, Ms. Starrett?

Colm Willis from Marion County, and that was

it.

Q. Okay. All right. Ms. Starrett, can you think –

was there any other context, according to you, for Ms.

Horner’s statement about the mass exodus other than

your question about parochial schools?

No.

MR. KAEMPF: That is all that I have, Your Honor.

38a

THE COURT: Mr. Abrams, go ahead.

MR. ABRAMS: Yes, cross-examination.

CROSS-EXAMINATION

BY MR. ABRAMS:

Q. Ms. Starrett, do you know what Ms. Horner’s

title is?

A. Yes. She’s economic development coordinator

and is fulfilled to us as the go-to, the governor’s

spokesperson for our weekly calls.

Q. Okay. Do you know whether she has any

experience or authority in her job for the field of

education?

A. She functioned as a spokesperson for all the

departments [42] in state government.

Q. Ms. Starrett, what’s your basis for saying that?

A. Because the reason that she’s been positioned to

be on the calls, all the county commissioner calls is she

is the go-to person for our questions about OHA, ODE,

mutual solutions. There is no other person, barring the

governor’s press conferences, no other representatives

from state agencies that are ever tasked with answering our questions other than Leah Horner.

Q. That’s for you as a member of the Yamhill

County Commission?

A. That is for the commissioners.

* * *

39a

APPENDIX I

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

————

Civil No. 3:20-cv-01345-MO

————

HORIZON CHRISTIAN SCHOOL, an Oregon nonprofit

corporation; MCMINNVILLE CHRISTIAN ACADEMY,

an Oregon nonprofit corporation; and

LIFE CHRISTIAN SCHOOL, an assumed business name,

Plaintiffs,

KATE BROWN, Governor of the

State of Oregon, in her official capacity only,

Defendant.

————

DECLARATION OF JOHN KAEMPF IN

SUPPORT OF PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT

————

John Kaempf, OSB #925391

KAEMPF LAW FIRM PC

1050 S.W. Sixth Avenue

Suite 1414

Portland, Oregon 97204

Telephone: (503) 224-5006

Email: john@kaempflawfirm.com

Attorney for Plaintiffs

40a

I, John Kaempf, testify as follows: I am over 18

years of age and of sound mind, and I have personal

knowledge of all matters herein. I am a lawyer. I

represent the Plaintiffs in this case. I participated in

all depositions in this case. Attached as exhibits are

true copies of portions of sworn deposition testimony

from authorized defense witnesses Lindsey Capps,

Jody Christensen, and Leah Horner relating to and

supporting Plaintiffs’ motion for partial summary

judgment as to their claim for nominal damages. The

attached testimony is undisputed.

I declare under penalty of perjury that the foregoing

is true and correct. Executed on September 15, 2021.

/s/ John Kaempf

JOHN KAEMPF

41a

[1] Deposition of: Lindsey Capps

October 26, 2020

————

HORIZON CHRISTIAN SCHOOL; et al.

vs.

KATE BROWN, GOVERNOR OF THE STATE OF OREGON

————

Case No.: 3:20-cv-01345

————

SYNERGY LEGAL

Litigation Support Services

* * *

[23] * * * Q. What is your job title?

Senior education policy advisor.

Q. What does that involve?

A. I advise the Governor on K-12 policy.

Q. How long have you held this position?

A. I’ve worked for the Governor since March of

2015.

Q. Who do you report to in the Governor’s office?

A. I report to Deputy Chief of Staff Berri Leslie and

Chief of Staff Nik Blosser.

Q. Anyone else?

No.

Q. Do you have control over Colt Gill at the

Department of Education?

No.

42a

Q. Do you know what his title is?

Yes.

Q. Okay. And what is that? And also, if you know

his duties, please let me know.

A. Colt Gill’s title is Director, Oregon Department

of Education and Deputy Superintendent of Public

Instruction.

Q. Do you have any knowledge or specialized [24]

training in infectious diseases?

A. Could you read the question? I heard infectious

diseases but there was something before that.

Q. Please read it back.

(Court reporter read back as requested.)

A. Thank you, Mary.

To answer your question, I do not.

Q. Are you aware of whether or not Colt Gill has

any such training or experience?

I’m not aware.

Q. Who is Leah Horner?

A. Leah Horner is a colleague in the Governor’s

office.

Q. What is her title?

A. She is the Jobs and Economy Advisor and the

Regional Solutions Director.

* * *

43a

[29] * * * Q. Did there come a time when the state

this year received five million face coverings? I think

they were called KN95.

Yes.

Q. And isn’t it true that the state made a decision

specifically to not give those masks to [30] private

schools?

A. The decision was made to make sure that our

public schools received the supplies that they needed

given the size of the system across the state.

Q. That did not answer my question so I’ll ask it

again.

Isn’t it true that private schools were specifically

excluded as entities that would not get any of the five

million face coverings?

Yes.

Q. Why?

A. The demand within our public school systems

that are publicly funded for those PPE, essential PPE,

I understand was the reasoning for that by the

department.

Q. What was the reasoning?

A. I believe I answered the question that I – as I

said, the department made a determination that the

five million masks would be necessary to ensure that

all districts’ students and staff had adequate PPE.

Q. So is it your contention that there were not

enough masks for private schools?

A. My understanding from the department is that

they believed that they needed to provide public

schools given the needs there.

44a

[31] Q. Okay. And I understand that. But was it

possible to also give some of those masks to private or

religious schools?

MR. ABRAMS: Objection, calls for speculation, lack

of foundation.

You’re getting –

MR. KAEMPF: It’s not speculation.

There were five million masks, and my question, Mr.

Capps, is whether or not there were enough to also

give them to private schools?

MR. ABRAMS: Do not argue with my objection.

BY MR. KAEMPF:

Q. Go ahead. Please answer the question.

A. I am not fully aware of the terms of the distribution as it was determined by the Oregon Department

of Education and the Federal Emergency Management

Agency.

* * *

[74] * * * Q. That’s not my question. My specific

question is during the pandemic this year have you

dealt with any concerns from anyone about public

school funding disruptions?

A. I’m not sure how to answer that question.

Q. Yes or no.

Yes.

Q. Okay. Then who did you discuss that with?

A. I don’t recall. I think it was a matter the certain

agency brought forward.

Q. What agency?

45a

The Oregon Department of Education.

Q. Did you discuss – we can call it school funding

disruptions or, you know, public schools [75] getting

less money because of the pandemic, who did you

discuss that with at the ODE?

A. Certain issues around the ability for schools to

operate under existing resources was a conversation –

general conversation with Colt Gill, the director of the

department.

Q. Anyone else?

A. Certainly associations representing K-12 superintendents and others had a general concern about

that, so that had to do with the availability of

emergency relief.

Q. Please name the associations and their representatives that you had these types of discussions with

this year?

A. The Confederation of Oregon School Administrators.

Q. What’s the name of the lead representative?

Craig Hawkins is the executive director.

Q. Any other organizations?

A. Not that I recall.

Q. Isn’t it true that the Governor is concerned

about public schools losing a significant amount of

money if students are allowed to freely transfer away

from public schools?

MR. ABRAMS: Asked and answered.

[76] Go ahead.

THE WITNESS: No.

46a

BY MR. KAEMPF:

Q. Are you saying that is not true?

MR. ABRAMS: Asked and answered.

THE WITNESS: It’s not true.

BY MR. KAEMPF:

Q. Okay. In writing or any form has Governor

Brown ever expressed to you that she is concerned that

the pandemic is going to cause public schools to lose

money?

A. Certainly there were financial impacts of the

pandemic that are a general concern.

Q. That’s not my question. My question is did

Governor Brown ever express any sentiment like that

to you?

No.

Q. Did anyone else within the Governor’s office

express a concern like that?

No.

Q. Have you ever had that concern?

A. The line of questioning is whether I have

concern about the sustainability of public schools?

Q. About public schools losing funding because of

transfer or unenrollment during the pandemic.

[77] A. Not in the Governor’s office, no.

Q. How about any other part of the Oregon

government?

A. Certainly it’s a topic that I’ve spoken with the

Oregon Department of Education and Colt Gill about.

* * *

47a

[79] * * * Q. Okay. I’m sorry. What is your title

again?

A. I’m the Senior Education Policy Advisor in the

Office of the Governor.

Q. Okay. I got it. So for shorthand is it fair [80] to

say you work for the Governor?

A. That’s correct.

* * *

[150] * * * Q. On July 23rd, 2020, Colt Gill writes

in a text message labeled 039184, quote, “I think you

are aware that we were able to land five million nonmedical KN95 face coverings,” end quote.

Then he writes, quote, “I plan on distributing these

to school districts with a quota based on enrollment

waiting for poverty,” end quote.

Do you recall that text?

A. I do.

Q. Was it to you?

A. I recall receiving it.

Q. Okay. And shortly after that Colt Gill writes,

[151] quote, “I did not plan on providing any to private

schools but Mark Seagull asked. What are your

thoughts on this,” end quote.

Do you recall receiving that text?

From Colt or from Mark Seagull?

Q. I believe it was from Colt where he quotes Mark

Seagull where he’s saying he’s not going to provide

those masks specifically to any private schools. Do you

recall getting that text?

It sounds like it was in the same chain.

48a

Q. Uh-huh, so do you recall getting that –

Yes.

Q. – specifically?

Do you know why Colt Gill did not want to provide

these face coverings specifically not to private schools?

A. I think I spoke to this earlier in my testimony

and through other direct conversation it’s clear that

there were concerns about the ability of that supply

that was being provided to Oregon through a partnership with FEMA, that they may not be sufficient to

meet all of the public needs of schools across the state.

Q. So is it fair to say that your office wanted to

make sure that the public schools were taken care

[152] ever of those masks but specifically not the

private schools?

A. It’s certainly the position of the department to

make that decision.

Q. Then it quotes in the text message were talking

about he says, quote, “Mark Seagull asked what are

your thoughts on this,” end quote.

Who is Mark Seagull again?

A. Mark Seagull is the communications director

for the Oregon Department of Education.

Q. And did you give your thoughts on this relating

to those masks not being given to private schools?

A. I was briefed about that and indicated that

that was the position of the department that from my

perspective that was okay.

Q. Why was it okay to exclude private schools from

getting these masks?

49a

A. The question was about how to make sure that

public schools received tax payer funded masks and

the amount of supply we were able to provide.

Q. So isn’t it true then that you made sure that the

public schools were going to get those masks first and

specifically that private schools were not going to get

any of those masks?

A. That is the outcome of the decision but if [153]

there were additional supply added, there was no

reason why they could not also be distributed to the

private schools. It was about the supply that was

available.

Q. Were they ever, in fact, distributed to private

schools?

A. I didn’t hear the last part.

Q. Were they ever, in fact, distributed to private

schools, these masks?

A. I think you have to ask the department if there

was any action on that.

Q. Do you know either way?

A. I don’t know.

* * *

[154] Q. Okay. And Mr. Abrams has been kind

enough and you have, too, to give me about another 30

minutes here to finish and I’ll do my best to be brief

and move this along. Okay?

The masks that we were just talking about that

specifically were not distributed to private schools,

were they provided to the state for free?

A. They were provided through FEMA so they

were a federal aid package.

50a

Q. Did FEMA charge the State of Oregon for them

or did they just provide them to the State of Oregon?

They provided them is my understanding.

Q. Okay. So is it fair to say then that you made

sure that private schools did not receive any FEMAprovided face coverings during this year’s pandemic?

A. We made a decision to prioritize or at least the

department made a decision to prioritize public schools.

Q. Isn’t it true that after prioritizing public schools

the fact is that no religious or private school in Oregon

received any of the FEMA-provided face coverings this

year?

At that time, yes. * * *

51a

[1] Deposition of: Jody Christensen

October 30, 2020

————

HORIZON CHRISTIAN SCHOOL; et al.

vs.

KATE BROWN, GOVERNOR OF THE STATE OF OREGON

————

Case No.: 3:20-cv-01345

————

SYNERGY LEGAL

Litigation Support Services

* * *

[5] THE VIDEOGRAPHER Here begins the

videotaped deposition of Jody Christensen in the

matter of Horizon Christian School et al v. Kate

Brown, Governor of the State of Oregon, case number

320CV01345.

Will the counsel please state their appearances for

the record.

MR KAEMPF: This is John Kaempf attorney for

Plaintiff.

MR. ABRAMS: Marc Abrams, assistant attorney in

charge of civil litigation division, Oregon Department

of Justice, on behalf of defendant.

THE VIDEOGRAPHER Stenographer will swear in

the witness.

52a

[8] * * * Q Moving forward, what is your job title?

A I’m a regional solutions coordinator in the

governor’s office.

Q If you could flush that out a bit for me. What

kind of job duties does that involve?

A I’m responsible for working with the

communities of Marion, Polk and Yamhill County in

economic and community development projects and

help streamline processes with state agencies and to

build partnerships.

[9] Q How long have you held that position?

I’ve been in this position since January 2019.

Who do you report to in the governor’s office?

My director is Leah Horner.

* * *

[41] * * * Q The response to anything Ms. Starrett

may have said during the August 5th county

commissioner weekly meeting, do you recall Leah

Horner expressing a concern or making a statement

about a mass exodos from public schools?

Yes.

Q Concerning a mass exodos from public schools,

do you recall what question or statement prompted

Leah Horner to say that?

I don’t recall.

Q But you do recall that Ms. Horner referenced a

mass exodos from public schools. Correct?

Yes.

Q Please tell me precisely, as best you can, what

you recall Leah Horner saying about a mass exodos

53a

from public schools during the August 5th, 2020

weekly conference call with county commissioners.

I don’t recall.

Q Okay. Just help me with this. You don’t recall,

but yet you do recall that she referred to a mass exodos

from public schools; is that right?

[42] A I remember the phrase “mass exodos.” I don’t

recall the specifics.

Q Did the phrase “mass exodos,” was it stated by

Leah Horner?

Yes.

* * *

54a

[1] Deposition of: Leah Horner

October 28, 2020

————

HORIZON CHRISTIAN SCHOOL; et al.

vs.

KATE BROWN, GOVERNOR OF THE STATE OF OREGON

————

Case No.: 3:20-cv-01345

————

SYNERGY LEGAL

Litigation Support Services

* * *

[11] * * *Q BY MR. KAEMPF: Do you have authority today, Ms. Horner, to your understanding, to

testify on behalf of Governor Brown?

MR. ABRAMS: Same objection.

BY MR. KAEMPF: Please answer.

MR. ABRAMS: You can answer. A I’m here today to

testify as a member of Governor Brown’s staff.

Q BY MR. KAEMPF: Isn’t it true that Governor

Brown knows that you’re giving a deposition in this

case today?

Yes.

Q And did she ever say, look, you are not

authorized to testify on my behalf?

No.

What is your job title?

55a

A I am the jobs and economy policy advisor for

Governor Brown and the director of regional solutions.

How long have you held that position?

[12] A I have held this position for 13 months.

Q Please explain to me exactly what the jobs and

economy policy advisor is and does.

A My job is focused on working with the business

community and making sure that we understand the

economic and business impacts of the state that are

out there are pre-COVID in general and post-COVID

as a result of COVID.

* * *

[46] * * * Q Did you say in response to that question

from Mary Starrett that there was a concern about a

mass exodus from public schools if private or religious

schools were allowed to reopen?

A I did use the term there would – there could be

a mass exodus from public schools. But it was not in

the context directly correlated to private or religious

schools. It was also in the context of school disenrollment for children moving to online schools, virtual

schools, charter schools, and it was in correlation to

the fact that disenrollment from public schools modifies the school funding methodology.

And in previous conversations that I had had that

week with other county commissioners, they were

unaware of what that disenrollment from public school

does to their school – their share of the state school

fund, and so I was sharing that as a point of

information.

* * *

56a

[48] * * * Q Okay. I don’t want to know about conversations with your lawyer, the governor’s lawyers,

that’s legally none of my business. But what I do want

to know is, did you talk about Mary Starrett’s

declaration with anyone on the governor’s staff ever?

MR. ABRAMS: And just to be clear, you’re including

Justin Buhler and Sarah Westin. Right, John?

Q BY MR. KAEMPF: If it involved lawyers, I don’t

want to know that. But I want to know of people who

are not lawyers that you worked with, for example,

Jody Christensen, people like that, did you ever with

such people, nonlawyers, discuss Mary Starrett’s

declaration in this case?

Yes.

Who did you discuss that with?

I discussed that with Jody Christensen.

And was that in writing or verbally or both?

Verbally. It was verbally.

Q And what was Jody’s reaction? What did she say

when you discussed that?

A I think Jody and I were trying to recall the

conversation, and we both recollected very similar [49]

statements that were had on that call.

Q Did Jody say to you, in so many words, that yes,

she recalled that you did use the phrase “mass exodus”

from public schools?

A I don’t know if Jody used that phrase, but I

recall using that phrase. And so I offered that up as

part of the conversation with Jody.

Because you do recall that.

57a

Yes.

Q Have you in any way been disciplined or

reprimanded by anyone in the governor’s office

because of what – your statement about the mass

exodus from public schools?

No.

Q Since the mass exodus meeting that Mary

Starrett attended, have you had any kind of communication with her?

Yes.

Q Have you ever expressed a concern to anyone

during the pandemic about a large amount of students

leaving public schools?

Yes.

Okay. Who did you say that to?

A That was a topic of conversation that came up

on all of the county calls that I had over that similar

[50] period of time.

Q And who was concerned about a large amount

of students leaving public schools during the pandemic?

A I’m sorry. Could you repeat the first part of that

sentence?

Sure.

Who was concerned about a large amount of

students leaving public schools during the pandemic?

County commissioners.

* * *

[51] * * *Q What prompted you to make that mass

exodus comment?

58a

A The prompt from that comment was other

conversations that I had had with county commissioners who were unaware of the impacts on disenrollment

from public schools to the state school [52] fund share

that their counties would receive.

Q Please tell me the names of all such county

commissioners that you just referenced.

A So I’m trying to recall. Commissioner Anderes

from Union County was one. This was a topic that

came up on the call with the commissioners from the

Eastern Oregon counties that I had previously had. I

do not recall all of the county commissioners that were

on the call on – on that day.

Q Paragraph three of your declaration states,

quote, [as read:] Miss Starrett takes what I said out of

context and/or misapprehends what I said, end quote.

Is that accurate?

Yes.

Q How, according to you, did Mrs. Starrett

misapprehend what you said?

A In my recollection of her statements, she

correlated the mass exodus comment to only private,

religious schools which was not the case. I was talking

in the context of all students disenrolling from K-12

public schools regardless of where they were going or

the impact to religious private schools.

Q Okay. And paragraph three of your declaration,

[53] when you say that Ms. Starrett, quote, [as read:]

takes what I said out of context, end quote, what is it

that you said?

My recollection of what was said was two parts.

59a

The first part was in reference to the question that

Commissioner Starrett had asked about whether or

not private, religious schools would be able to operate

under guidance different than K-12 public schools.

The answer to that was no.

And then I pivoted as a follow-up statement talking

about the potential of mass exodus from public schools

and the impact that that would have to the state school

fund share. And in reading Ms. Starrett’s – or

Commissioner Starrett’s comments, I believe that she

conflated those two independent thoughts as one

correlated statement.

Q You say that she took your comments out of

context. So please tell me what was the proper context.

A I think the proper context was that if we have

students leaving K-12 public schools, there will be an

impact to the state school fund share that school

districts receive, and that that could be a longer-term

issue for schools to be able to operate.

Q Now, paragraph three of your declaration, as I

[54] mentioned, says that Ms. Starrett misapprehended

what you said. So what I would like to know is, what

did you mean to convey?

A I meant to convey two statements; the first

being that private schools, religious or not, would not

be under different guidance than K-12 public schools.

And the second piece that I wished to convey was

that if there was disenrollment from K. 12 public

schools, it impacts the state’s school fund share that

school districts receive.

Q During this conference call we’re talking about

that you say happened on Wednesday, August 5th, do

60a

you recall anyone else using the phrase “mass exodus”

besides you?

I do not recall anybody else using that term.

Q And going back to that meeting, do you know

why you used the somewhat unique phrase “mass

exodus” in response to Ms. Starrett’s question?

I do not recall why that phrase was used.

Q Did you ever see the phrase “mass exodus”

relating to public schools in the pandemic before you

made that statement to Ms. Starrett?

No.

Q Are you aware of the phrase “mass exodus”

being [55] used in any of the text messages or emails

within the governor’s office related to the pandemic?

Not that I’m aware of.

Q Do you know if anyone redacted or removed the

phrase “mass exodus” from all the 50-some thousand

documents we got?

No.

Q In paragraph four of your declaration it states,

quote, [as read:] I am not the person who makes policy

determinations in the area of education for the state of

Oregon. Those people are the governor and Lindsey

Capps, end quote.

Is that true?

Yes.

* * *

[58] * * * Q Now, going back to your declaration in

paragraph four in reference to the mass exodus from

public schools comment, you say, quote, [as read:]

61a

Even if I had said what Ms. Starrett reported, it would

reflect only my own observations, end quote.

Is that true?

Yes.

Q What were your own observations related to the

mass exodus from public schools?

A My own observations related to mass exodus

from public schools was that I believe that it is an issue

that honestly was not being discussed and would have

had – would have ramifications with negative outcomes if elected officials were unaware that there would

be, again, negative outcomes related to disenrollment.

What do you mean by “negative outcomes”?

A The negative outcome related to that would be

– could potentially be a significant decrease in a

school’s – state school’s fund share.

Q Now, in your declaration you also state that,

quote, [as read:] all schools are being treated equally,

end quote.

Is that true?

[59] A Based on my understanding of the education

guidance, yes.

Q But if that is true, Ms. Horner, please explain to

me why on July 23rd of 2020, Colt Gill sent you a text

message stating, quote, [as read:] I think you are

aware that we were able to land five million nonmedical

face coverings, end quote. And, quote, [as read:] I did

not plan on providing any to private schools, end quote.

MR. ABRAMS: Objection. Calls for speculation.

You can answer.

62a

Q BY MR. KAEMPF: Do you recall that Colt Gill

sent you that text message?

I honestly do not recall that text message.

Q Do you recall ever having a discussion with Colt

Gill about the five million nonmedical KN-95 face

coverings that the state received?

No.

Q Do you recall Colt Gill in any manner ever

telling you that he did not plan on providing any of

them to private schools?

I do not.

Q And I’ll represent to you that in that text

message, Mr. Gill also asked, quote, [as read:] What

[60] are your thoughts on this, end quote, and that’s

marked as 039323.

Do you recall that and did you give him your

thoughts on that issue?

I honestly don’t recall.

Q Aside from text messages, do you have any

knowledge about whether private schools have been

specifically excluded from getting the KN-95 – the five

million nonmedical face coverings?

I don’t have any recollection of that.

What is the JER fund?

A The JER fund is a fund that the Department of

Education has, but I do not know enough about it to

even begin to explain what it is.

Q Isn’t it true that in May of this year, you stated

that private faith-based schools should be excluded

from the JER fund? And that’s document 00966.

63a

I don’t recall.

Q Well, I’ll represent to you that that’s a

statement in the documents that you made.

Do you recall ever making that statement, that

specifically that private, faith-based schools should be

excluded from the JER fund?

I do not.

* * *

[62] * * * Q During the pandemic, have you ever

expressed a concern to Governor Brown or Lindsey

Capps about a large amount of students leaving public

schools?

No.

[63] Q Have either Governor Brown or Lindsey

Capps ever expressed that type of concern to you?

A When this question came up with the commissioners, I asked Lindsey about it, and he explained to

me what it does to the state school fund. So I would

say that we had a discussion about it and what the

implication would be.

Q Please give me all details you recall about that

discussion, including the implications.

A So I reached out to Lindsey, and I do not recall

if it was verbal or in writing, and asked him what

happens if there is a disenrollment from the K-12

system. And he –

Go ahead.

A And he indicated to me that the state school

fund is based on number of students enrolled, and that

if kids were disenrolling to either go to a virtual school,

a charter school, a private school, that when we did get

64a

back – kids back in school, that there would – there

had the potential to be a disproportionate impact on

the school funds for the districts based on disenrollment numbers.

And was that –

A That was the only conversation we’ve had about

this.

[64] Q And about when did that conversation occur?

I do not recall specifically.

And how about generally?

Generally, I would say mid summer.

Q And when you said “disproportionate impact,”

you’re talking about money. Correct?

Correct.

Q Was that general subject that you discussed

that you just mentioned with Lindsey Capps, was that

general subject ever the subject of any kind of written

report or summary?

Not that I recall.

Q Have you ever created or read a report that

shows the possible financial effects of students leaving

public schools during the pandemic?

I have not.

Do you know if one exists?

I do not

Q Before the mass exodus meeting that we’re

talking about with Mary Starrett that you believe was

August 5th, had you ever discussed students disenrolling from public schools before that date?

65a

A I believe the conversation came up with the

Eastern Oregon commissioners prior to that conversation with Commissioner Starrett.

[65] Q How much prior? And please give me the

names, if you know, of the Eastern Oregon commissioners.

A I meet with them on Thursdays. So I believe it

was the Thursday prior to the Wednesday meeting

with Commissioner Starrett.

Q And what is the name of the Eastern Oregon

county commissioner who raised a concern like that

before Ms. Starrett raised a concern?

Commissioner Anderes from Union County.

Q And as best you can recall, what did Commissioner Anderes say in that regard?

A He mentioned the impact to the state school

fund based on disenrollment of kids from K-12.

What kind of impact?

A He mentioned the reduction in the state school

fund share that schools would receive.

Q In sort of layperson’s speak, was he concerned

that his district would receive less money if a lot of

students disenrolled?

Yes.

* * *

[66] * * * Q Are you aware of anyone in Oregon’s

government, other than you, that has used a phrase

like “mass exodus” or, you know, just something like a

lot of students leaving public schools during the

pandemic?

66a

A I believe heading into the school reopening plan,

that there was concern that students would be leaving

public school.

Who expressed that concern and when?

A I have heard – I heard that concern from county

commissioners.

[67] Q What are their names?

The one that I recall is Commissioner Anderes.

* * *

[68] * * * Q Did you verbally or in writing pass

along the concern that you mentioned a few minutes

ago, that Eastern Oregon – maybe you said Union

County – commissioner about funding or disenrollment, did you pass that along to anybody at the

governor’s office?

A Yes. That’s what triggered the conversation

that I mentioned previously with Lindsey Capps about

what this impact would have.

Q And do you know concerning that conversation

with the Eastern Oregon county commissioner and

then the related conversation with Lindsey Capps,

was that ever memorialized in any kind of memo or a

summary?

No.

Q Other than Lindsey Capps, have you ever

passed along a concern from any elected public official

during the pandemic about students disenrolling from

public schools?

I do not recall.

Q How much money does a public school receive

for every enrolled student?

67a

I do not know.

[69] Q Now, going back to your declaration in this

case, in paragraph three concerning Mary Starrett’s,

you know, mass exodus, that testimony, you say,

quote, [as read:] I had been discussing a concern that

had been raised in another call about the potential loss

to an educational institution of state school funds if

students were disenrolling from such a call, end quote.

Is that accurate?

Yes.

Who was that other call with?

A It was with the Eastern Oregon county

commissioners.

call.

Do you remember their names?

I know that Commissioner Anderes was on the

Q Were others on the call and you just can’t

remember their names?

A Yes, and I apologize. I have a core set of

commissioners that I speak with every week, and

sometimes they’re unable to attend. And I cannot

recall which ones actually called in that day.

Q As referenced in paragraph three of your declaration, when was that, quote, other call, end quote?

[70] A So I meet with Eastern Oregon counties

every – actually, I meet with them every Wednesday.

So it would have been the week prior.

Q And paragraph three of your declaration when

you’re talking about that other call, and it says, quote,

[as read:] A potential loss to an educational institution

of state school funds if students were disenrolling from

68a

such a school, end quote, and my question is what

educational institution does that refer to?

I believe that would be the school.

What school?

Whichever school a child disenrolled from.

* * *

[72] * * * Q Did Ms. Starrett, or any other county

commissioner on the meeting you say was August 5th,

ask you whether private schools or religious schools

could be exempted from following Department of

Education guidance?

Yes.

What did you say in response?

A My response was that we – to the best of my

knowledge at that time, we were not issuing separate

guidance for different types of schools.

Q And during that meeting – who asked that

question, Ms. Starrett or someone else?

It was Ms. Starrett.

Q So did Ms. Starrett ask a separate question to

the effect of, why can’t parochial schools be allowed to

reopen?

A I don’t recall that specific question at that

meeting.

Q How about anything to the effect of religious

schools or private schools being allowed to reopen?

A I believe she did ask something along those

lines.

* * *

69a

[74] Q In paragraph three of your declaration in this

case concerning the mass exodus conference call, as

we’re calling it for shorthand, you stated that if, quote,

[as read:] Students enroll – disenroll from a public

school, that school could lose some of its state school

funds, end quote.

Is that right?

Yes.

Q Was that on your mind at the time of that

conference call that you’re saying was on August 5th?

Yes.

Why?

A Because I had had that conversation previously

with county commissioners.

* * *

[78] * * * A So part of my role in having weekly

communications with county commissioners is to

inform and educate all of the issues as I’m aware of

related to the pandemic. And this was one topic that

had come up with other commissioners, and I often

repeat the topics that are of concern from other

commissioners to other groups of commissioners. And

I had talked to Lindsey Capps about the impacts to the

state school fund and communicated that information

back to them.

Q When you say this is a topic that had come up,

what do you mean by this?

A The disenrollment of students from K-12 public

school system was the topic that came up.

And when you say “impact,” what do you mean?

70a

A The impact would be the reduction to the state

school fund that a school would receive.

Q So in other words, public schools would get less

money if students disenrolled because of the

pandemic?

That’s correct.

* * *

71a

APPENDIX J

OREGON

Department of Education

Oregon achieves...together!

Oregon Health Authority

Ready Schools, Safe Learners Resiliency Framework

for the 2021-22 School Year

Updated September 9, 2021

* * *

Face Coverings

Oregon is placing a priority on ensuring that every

student is able to attend school in-person for the entire

school year. Students are required to attend school,

which is a congregate setting where COVID-19 can

spread easily if precautions are not taken. Universal

and correct use of face coverings keeps students learning in-person. ODE, OHA, the CDC and the American

Academy of Pediatrics (AAP) all agree that returning

to full-time, in-person learning is best for our children.

A recent CDC Morbidity and Mortality Weekly Report

emphasizes the importance of face coverings in schools

in the context of the Delta variant of COVID-19.

On August 27, 2021, OHA updated OAR 333-019-1025

requiring everyone age five (5) or older to wear a face

covering anywhere indoors, and outdoors where people

from separate households gather. OHA has completed

an FAQ for this rule which has additional detail and

information.

On September 3, 2021, OHA updated OAR 333-0191015 requiring face coverings in all K-12 indoor and

outdoor settings. ODE has created an FAQ for this

rule. This rule applies to public, private, parochial,

72a

charter, youth corrections education programs (YCEP)

and juvenile detention education programs (JDEP) or

alternative educational programs offering kindergarten through grade 12 or any part thereof. The rules

require the following:

• All individuals 5 years of age and older to wear

a face covering while indoors in a K-12 school,

during school hours. Certain accommodations

for medical needs or disability may be necessary, and certain conditions for exceptions are

detailed in the OAR 333-019-1015.

o Children under 5 who are learning in preschool classrooms that operate in school

settings are not required to wear face coverings. In any early learning program serving

0 to 5 year olds, students are not required to

wear a face covering.

• All individuals 5 years of age and older to wear

a face covering outdoors when individuals cannot or do not consistently maintain at least 6 feet

of physical distance from people not in their

household.

• All individuals aged two (2) or older who are

using public transportation, including riding a

school bus operated by a public or private school,

must wear a face covering.

OAR 333-019-1015 and OAR 333-019-1025 do not

require a person to wear a face covering indoors when

playing competitive extracurricular sport at any level,

nor when officiating a competitive sport that requires a

high level of physical exertion by the official. OARS

333-019-1015 and 333-019-1025 require all spectators

and officials who are not actively officiating at a high

73a

level of physical exertion at competitive sport events of

any level to wear a face covering.

OHA will review OAR 333-019-1015 monthly to determine the need for it to continue. Other COVID-19

mitigation protocols (physical distancing, airflow/

ventilation, etc.) remain local decisions.

When students falter in consistently and correctly

wearing a face covering, center grace and patience and

reteach the expectation. Schools and teams should

continually provide instruction and positive reinforcement to help all students adapt to the changes in

school facilities.

In the case that a student or family chooses not to wear

a face covering for reasons other than medical need or

disability, schools should follow district processes to

determine how to respond keeping in mind both the

responsibility for health and safety and the student’s

need to access education. Conversations should be

progressive and lead to resolution that ideally does not

involve suspension. Schools cannot serve a student inperson if they or their family choose not to wear a face

covering. Schools may offer a remote or online school

option for the student.

A face shield may be worn instead of a face covering if

an individual cannot wear a face covering for medical

reasons. Face coverings are preferred over face shields,

as they provide better containment of small aerosols

that can be produced while talking.

A face covering is NOT a substitute for physical

distancing. Face coverings are required and maintaining at least 3 feet of physical distancing to the extent

possible, especially when indoors or outdoors around

people from different households.

74a

Group face covering breaks or full classroom face

covering breaks are best done outdoors where ventilation and physical distancing are maximized. Outside

of brief outdoor and physically distanced “mask breaks,”

whenever face coverings are not required by OAR 333019-1015 or OAR 333-019-1025, they continue to be

strongly recommended to reduce the spread of COVID19.

At the June 17, 2021 meeting, the State Board of

Education took action on two rules:

Operational Plan/Safe Return to In-Person Instruction and Continuity of Services Plan This plan,

available on the ESSER III webpage, replaces the

Ready Schools, Safe Learners Operational Blueprint

required under Executive Order 21-06. Districts will

submit their Safe Return to In-Person Instruction and

Continuity of Services plan to ODE by August 23, 2021

to fulfill the requirements of American Rescue Plan

Elementary and Secondary School Emergency Relief

(ESSER III) State plan. Districts are required to

submit their plan to ODE by August 23, 2021 to fulfill

the Oregon State Board of Education requirement.

(OAR 581-022-0105). A date and submission process

for public charter schools will be communicated to

charter school leaders before the end of July 2021.

COVID-19 Recovery Services

Oregon’s Resiliency Framework for the 2021-22 School

Year shifts away from the requirements in Ensuring

Equity and Access: Aligning Federal and State Requirements. That guidance document was intended to

support schools and districts in ensuring that requirements related to specific federal programs continued

to be met in the varied instructional models that

existed in the 2020-21 school year. As we return to an

75a

educational context where in-person instruction is

nearly universally available, the expectations in

Ensuring Equity and Access are no longer applicable

and any information from that document returns to

pre-COVID-19 expectations

* * *

76a

APPENDIX K

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

————

Civil No. 3:20-cv-01345-MO

————

HORIZON CHRISTIAN SCHOOL, an Oregon nonprofit

corporation; and LIFE CHRISTIAN SCHOOL, an assumed

business name, JOHN MONTANG, an individual;

LYNN MONTANG, an individual; SARAH RODRIGUEZ,

an individual; REGINA MICHELINE, an individual;

JASON NISSEN, an individual; TRACIE NISSEN,

an individual; DAN ALDER, an individual;

DOMINIQUE BAYNES, an individual; ALEXANDER

JONES, an individual; ASHLEY CADONAU, an

individual; JARROD LEVESQUE, an individual;

ROBIN LEVESQUE, an individual;

Plaintiffs,

KATE BROWN, Governor of the State of Oregon,

in her official capacity only,

Defendant.

————

Judge: Honorable Michael Mosman

Room: 1615

————

PLAINTIFFS’ NOTICE OF APPEAL FROM ORDER

DENYING PLAINTIFFS’ RENEWED EMERGENCY

MOTION FOR A PRELIMINARY INJUNCTION

————

77a

John Kaempf, OSB #925391

KAEMPF LAW FIRM PC

1050 S.W. Sixth Avenue

Suite 1414

Portland, Oregon 97204

Telephone: (503) 224-5006

Email: john@kaempflawfirm.com

Attorney for Plaintiffs

Notice is hereby given that Plaintiffs Horizon Christian

School, Life Christian School, John Montang, Lynn

Montang, Sarah Rodriguez, Regina Michelin, Jason

Nissen, Tracie Nissen, Dan Alder, Dominique Baynes,

and Ashley Cadonau in the above-named case hereby

appeal to the United States Court of Appeals for the

Ninth Circuit from the district court’s December 31,

2020 order (ECF No. 78) denying their Renewed

Emergency Motion for a Preliminary Injunction (ECF

No. 56). A representation statement is attached.

Respectfully submitted on January 2, 2021.

KAEMPF LAW FIRM PC

/s/ John Kaempf

John Kaempf, OSB #925391

john@kaempflawfirm.com

Attorney for Plaintiffs

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.