Horizon Christian School, et al. v. Kate Brown, Governor of Oregon

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

3. 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)