Calvary Chapel of Bangor v. Mills

52 F.4th 40

CALVARY CHAPEL OF BANGOR, Plaintiff, Appellant,

v.Janet MILLS, in her official capacity as Governor of the State of Maine, Defendant, Appellee.

No. 21-1453

United States Court of Appeals, First Circuit.

October 31, 2022

Mathew D. Staver, with whom Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, and Liberty Counsel were on brief, for appellant.

Sarah A. Forster, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Christopher C. Taub, Chief Deputy Attorney General, were on brief, for appellee.

Before Barron, Chief Judge, Lynch and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

COVID-19 cases often force courts to decide difficult questions about how states use their powers against others. Not so here, however. The case is moot, as our de novo review of the matter shows, see Bos. Bit Labs, Inc. v. Baker ("Bos. Bit Labs"), 11 F.4th 3, 8 (1st Cir. 2021) — and no mootness exception can save it.

I

The parties — Calvary Chapel of Bangor ("Calvary") on one side, Maine Governor Janet Mills ("the Governor") on the other — do not really dispute the basic background events.

A

After the outbreak of COVID-19 in early 2020, the Governor declared a state of emergency. And invoking her emergency powers, she penned a series of orders to help slow the virus's spread (fyi, she issued proclamations renewing the state of emergency every 30 days — until, as we will see, the state of emergency ended in June 2021). We summarize the most salient of these.

Executive Order 14 FY 19/20, issued March 18, banned "[g]atherings of more than 10 people" for any "social, personal, [or] discretionary events" — including, for example, "community, civic, public, leisure, and faith-based events" (emphasis ours).

Issued March 24, Executive Order 19 FY 19/20 allowed "[e]ssential [b]usinesses and [o]perations" — "pharmacy and other medical, psychiatric, and long-term care facilities," "grocery and household goods," and "gas stations and laundromats" are just a few examples — to go beyond the 10-person-gathering cap, subject to social distancing and sanitation guidelines. "Non-essential businesses" — among them "shopping malls, theaters, casinos, fitness and exercise gyms" — could do limited activities that "d[id] not allow customer, vendor or other visitor in-person contact," "d[id] not require more than 10 workers to convene in space where social distancing is not possible," and "[were] facilitated to the maximum extent practicable by employees working remotely." Of importance here, the exemption for "essential businesses" did not (to quote Calvary's complaint) apply to "faith-based gatherings of more than 10 people."

Executive Order 28 FY 19/20, issued March 31, instructed "[a]ll persons" residing in Maine "to stay at their homes or places of residence," except as needed "[t]o conduct or participate in [e]ssential" employment or activities. This exception covered activities considered critical to public "health and safety," like "accessing child care, seeking medical or behavioral health or emergency services," visiting "[f]ood [b]anks and [f]ood [p]antries," and shopping for "household" necessities. The order also set customer limits based on the facilities' square footage — 5 people for buildings less than 7,500 square feet, 15 people for buildings between 7,500 and 25,000 square feet, 50 people for buildings between 25,000 and 50,000 square feet, 75 people for buildings between 50,000 and 75,000 square feet, and 100 people for buildings more than 75,000 square feet. Also of importance here, "[t]he exemption allowing ‘essential’ businesses to operate subject to numerical limitations" (to again quote Calvary's complaint) "was not applicable to faith-based gatherings or churches, regardless of the size of the building in which such worship services take place."¹

Issued April 29, Executive Order 49 FY 19/20 directed Maine's department of economic and community development to implement a four-stage plan to re-open the economy — "identify[ing] businesses and activities where current restrictions may be adjusted" and granting "conditional approval consistent with" the plan, though acknowledging that "[a]ny such approval is ... subject to suspension or revocation depending upon actual and consistent compliance with such conditions." Noting how the "tireless efforts and decisive action by people across Maine" seemed "to be flattening the curve against COVID-19," the plan (we offer a few highlights) discarded the "essential v. non-essential" labels and eased past restrictions. Envisioning a 10-person-gathering limit, stage 1 (to start May 2020) allowed the re-opening of certain businesses under industry-specific checklist standards. Stage 1 anticipated "[l]imited drive-in, stay-in-your-vehicle church services." Stage 2 (to start June 2020) contemplated a 50-person-gathering limit and more businesses that could re-open. Stage 3 (to start July or August 2020) foresaw keeping the 50-person-gathering limit but allowing more businesses to re-open. And stage 4 (to start at a date to be determined) expected "[a]ll businesses" to re-open. The plan did say, though, that "[i]f the COVID-19 situation worsens in Maine for any reason, the state will move quickly to either halt progress or return to an earlier stage."

Consistent with past practice, "we refer to this quartet of executive orders as the ‘gathering orders’ and to the April 29 order as promulgating ‘the re-opening plan.’ " See Calvary Chapel of Bangor v. Mills ("Calvary I"), 984 F.3d 21, 26 (1st Cir. 2020), cert. denied, ––– U.S. ––––, 142 S. Ct. 71, 211 L.Ed.2d 11 (2021).

B

Not long after in early May 2020, Calvary sued the Governor in federal court. Simplifying slightly, the complaint — raising many facial and as-applied constitutional and statutory challenges — essentially claimed that the gathering orders discriminated against Calvary by "prohibit[ing]" Calvary "from hosting its in-person religious worship services" while letting "businesses" run "without the onerous restrictions imposed on Calvary." And the complaint (as relevant here) requested a temporary restraining order, a preliminary injunction, a permanent injunction, and a declaratory judgment.²

On the same day it filed the complaint, Calvary moved for a temporary restraining order and ultimately a preliminary injunction. The district judge, however, denied Calvary's bid for a temporary restraining order. Rather than pushing for a hearing on its preliminary-injunction request, Calvary immediately appealed. But we later dismissed that appeal for lack of jurisdiction. See id. at 25.

C

Meanwhile, the Governor issued more executive orders in late spring and early fall of 2020. Of note are these.

Issued on May 29, Executive Order 55 FY 19/20 upped the gathering limit from 10 to 50 effective June 1.

Executive Order 14 FY 20/21, issued October 6, set the indoor-gathering limit for "establishments that provide and require seating for all invitees" at "50% of the facility's permitted occupancy limit or 100 persons, whichever is less." For establishments that neither provide nor require seating, the order put the indoor-gathering limit at 50. "Establishments" included "houses of worship," the order read. And the order stated that "Maine is now positioned to implement" the final stage of the re-opening plan.

Issued November 4, Executive Order 16 FY 20/21 — after mentioning "the upward trajectory" of Maine's COVID-19 "cases, hospitalizations, and positivity rates" — returned the indoor-gathering limit to 50.

D

The filings in the district court became a paper blizzard, starting in February 2021. Without attempting to cover everything the parties argued, we discuss the following.

On February 9, the Governor asked the judge to dismiss Calvary's lawsuit. Reading Calvary's complaint as only contesting the 10-person-gathering limit, the Governor called the suit moot mainly because Executive Order 55 FY 19/20 had raised the limit to 50 roughly nine months earlier. Three days later, on February 12, the Governor issued Executive Order 31 FY 20/21, which increased "[t]he indoor gathering limit" for — and only for — "houses of worship" to "5 persons per 1,000 square feet of functionally available space, or 50 persons, whichever is greater." Within a week after that, on February 18, Calvary moved the judge for a preliminary injunction to stop the Governor from "enforcing her unconstitutional and discriminatory COVID-19 restrictions on Calvary['s] ... religious worship services."

This brings us to March 2021. Opposing the Governor's dismissal motion, Calvary's March 5 filing insisted that the complaint challenged "the entire regime " as it exists "today" — which, Calvary continued, meant that its claims were "not moot" (bold type in original). Alternatively, Calvary argued that two related exceptions to mootness — "voluntary cessation" and actions "capable of repetition yet evading review" (more on these shortly) — applied. That same day, the Governor issued Executive Order 35 FY 20/21, which — effective March 26 — increased "[i]ndoor gathering limits and in-store limits" to the greater of "50% of permitted occupancy, 5 persons per 1,000 sq. ft., or 50 persons." The Governor (to quote the order) took that step based on expert advice driven by "new information and the best available science."

To no one's surprise, the Governor opposed Calvary's preliminary-injunction request. According to her March 15 filing, because she had "rescinded" the 10-person-gathering limit "nearly nine months ago," no live controversy persisted. And stating that she "had announced her intent to increase the gathering limit before Calvary filed this lawsuit" and that "there is no reasonable expectation that the challenged conduct will reoccur," the Governor saw no way around mootness.

The parties exchanged replies and sur-replies.

E

With spring 2021 in full swing, the Governor issued Executive Order 38 FY 20/21 on May 13. This order jettisoned all "[i]ndoor gathering limits...