Whether a plaintiff must show a 'constant threat' of being closed again to obtain injunctive relief against a state governor during the pandemic and satisfy the exception to mootness for a controversy 'capable of repetition, yet evading review

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 (8) 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) ll 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.! 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. 1 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), lll 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,