Cardinale v. State

363 Ga.App. 873

873 S.E.2d 256

CARDINALE

v.STATE of Georgia.

A22A0287

Court of Appeals of Georgia.

May 16, 2022

Matthew Charles Cardinale, for Appellant.

Patrician B. Attaway Burton, Christopher Michael Carr, Atlanta, Paula Khristian Smith, Atlanta, Lyndsey Hurst Rudder, Atlanta, Brooke Heinz Chaplain, for Appellee.

Markle, Judge.

Matthew Charles Cardinale filed a pro se complaint for declaratory and injunctive relief, alleging that Governor Kemp's April 2020 shelter-in-place order violated his rights to free speech and protest under the federal and state constitutions. The trial court dismissed the complaint, finding that the claims were moot because the order had expired; Cardinale lacked standing because he had no injury in fact; the request for declaratory relief was barred by sovereign immunity; and there was no waiver of immunity for injunctive relief. Cardinale now appeals, challenging each ground. For the reasons that follow, we affirm.

We review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor.

(Citations and punctuation omitted.) Harrell v. City of Griffin , 346 Ga. App. 635, 636, 816 S.E.2d 738 (2018) ; see also American Professional Risk Svcs. v. Gotham Ins. Co. , 323 Ga. App. 776, 748 S.E.2d 134 (2013) (reviewing question of mootness de novo).

So viewed, the record shows that Cardinale is the owner of a newspaper and is well-known for protesting and filing suit against the government. In April 2020, in response to the COVID pandemic, Governor Kemp issued a series of emergency orders, including a state-wide order to shelter in place that prohibited individuals from gathering in public. See State of Georgia Executive Order, 4.02.20.01. Although other emergency orders remained effective throughout 2020 and into 2021, the shelter-in-place order was extended once before expiring by its own terms on April 30, 2020. See State of Georgia Executive Order 4.08.20.02.

In December 2020, Cardinale filed the instant complaint, seeking declaratory and injunctive relief, and alleging that the shelter-in-place order violated his First Amendment rights under both the Georgia and federal constitutions because the order contained no exception for the exercise of such freedoms.¹ Specifically, Cardinale alleged that the shelter-in-place orders chilled his right to protest government actions, including a planned protest at Atlanta City Hall, and placed him at risk of penalties if he violated the order. He contended that an injunction was necessary due to the likelihood that the governor would impose additional such orders in the future given the ongoing pandemic.

The State moved to dismiss the complaint on the grounds that (1) the claims were moot; (2) Cardinale lacked standing; and (3) the claims were barred by sovereign immunity. Cardinale responded, arguing that the case was not moot, or it fit into an exception because it was capable of repetition yet would evade review; the chilling effect of the order was a judicially recognized injury for standing purposes; and the State had waived its immunity.

The trial court dismissed the complaint, finding the issues moot and that the likelihood of future shelter-in-place orders was too speculative. The trial court further found that Cardinale had not alleged an injury in fact; there was no actual controversy before the court as would be required for a declaratory judgment; and, because there was no declaratory judgment, there was no waiver of immunity for injunctive relief. Cardinale now appeals.²

1. Cardinale first argues that the trial court erred in concluding that his claim alleging a violation of the Georgia Constitution was moot because (1) the injury was capable of repetition yet evading review; and (2) it fell under the public interest exception. As to the first exception, he notes that there was a short period of time in which to challenge the order; it is likely that the governor will issue other shelter-in-place orders; and the language in the order provided no exception for access to the courts. As to the second exception, Cardinale argues that the matter is of such great concern to the general public that an exception to the mootness doctrine lies. We are not convinced.

Mootness "is an issue of jurisdiction and must be determined before a court addresses the merits of a claim." Sweet City Landfill v. Elbert County , 347 Ga. App. 311, 318 (4), 818 S.E.2d 93 (2018) ; see also In the Interest of M. F. , 305 Ga. 820, 828 S.E.2d 350 (2019). "A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights. When the act that is the subject of [the requested] relief is completed, then the matter is moot and no longer subject to appeal." (Citations and punctuation omitted.) City of Comer v. Seymour , 283 Ga. 536, 537, 661 S.E.2d 539 (2008) ; see also Collins v. Lombard Corp. , 270 Ga. 120, 121 (1), 508 S.E.2d 653 (1998).

Here, the shelter-in-place order expired by its own terms less than a month after it went into effect. Cardinale filed his complaint more than six months later. Because the order had already expired, his challenge to the order was moot. Seymour , 283 Ga. at 537, 661 S.E.2d 539 ; see also AJC Gwinnett News v. Corbin , 279 Ga. 842, 843, 621 S.E.2d 753 (2005) (order of nondisclosure preventing parties from speaking to the media about possible criminal charges was moot once order was dissolved).

Other courts that have considered challenges to similar orders during the pandemic also have held that they are moot once the order expires.³ See Krach v. Holcomb , No. 1:20-CV-184-HAB, 2020WL2197855, at *2 (N.D. Ind. 2020) ("Challenges to executive orders that have expired by their own terms no longer present a live case or controversy.") (citations and punctuation omitted); see also Burke v. Barnes , 479 U. S. 361, 363-364, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (holding "that any issues concerning whether [a bill] became a law were mooted when [it] expired by its own terms"); Spell v. Edwards , 962 F.3d 175, 179 (II) (5th Cir. 2020) ; Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 377, 199 L.Ed.2d 275 (2017) ; Trump v. Intl. Refugee Assistance , ––– U.S. ––––, 138 S.Ct. 353, 199 L.Ed.2d 203 (2017). We agree with this reasoning and thus conclude that the issue Cardinale presents is no longer a live controversy.

Cardinale, however, contends that the case is not moot because it is either capable of repetition yet evading review, or that it is of such public interest that it requires consideration on the merits. We address each in turn.

(a) Capable of repetition yet evading review.

"[A] case which contains an issue that is capable of repetition yet evades review is not moot because a decision in such a case would be based on existing facts or rights which affect, if not the immediate parties, an existing class of sufferers." (Citation and punctuation omitted.) Collins , 270 Ga. at 122 (1), 508 S.E.2d 653. In considering whether an issue fits within this type of case, we must view "mootness" narrowly, recognizing that there are some issues for which there is "intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers" such that there remains a live controversy. (Citation and punctuation omitted.) Id. at 121-122, 508 S.E.2d 653 ; see also Ga. High School Assn. v. Charlton County School Dist. , 349 Ga. App. 309, 314 (1), 826 S.E.2d 172 (2019). In such cases, there would continue to be a live controversy even if it no longer existed between the specific parties to the suit. Collins , 270 Ga. at 122 (1), 508 S.E.2d 653.

Narrowly construing the mootness doctrine here, we cannot say that there continues to be a live controversy, because Cardinale has not shown that the alleged error is capable of repetition but will evade judicial review. See Kappers v. DeKalb County Bd. of Health , 214 Ga. App. 117, 118, 446 S.E.2d 794 (1994) (once Board lifted order confining tuberculosis patient to home, challenge to Board's order was moot); compare Citizens for Ethical Govt. v. Gwinnett Place Assoc. , 260 Ga. 245 (1), 392 S.E.2d 8 (1990) (denial of injunctive relief was not moot in suit involving a party collecting signatures for recall of elected official because short length of time in which to collect signatures made it capable of repetition yet evading review).

We note that Cardinale did not file his complaint during the effective dates of the challenged order, nor did he file it soon after the order expired. Instead, he waited more than six months to file his complaint, and during that time, the governor did not impose any other shelter-in-place orders. Cardinale's argument that such an order is likely to issue again is pure speculation. See Maxim Cabaret v. City of Sandy Springs , 304 Ga. 187, 189-190 (II), 816 S.E.2d 31 (2018) (challenges to ordinance were moot once ordinance had been amended, and plaintiff had not shown likelihood that prior ordinance would be re-enacted and enforced); In the Interest of I. B. , 219 Ga. App. 268, 276, 464 S.E.2d 865 (1995) (physical precedent only) (claim that was purely speculative did not meet capable of repetition yet evading review standard). In fact, although Cardinale contends that the existing pandemic will continue and will likely result in future shelter-in-place orders, we note that the governor has not re-instituted such emergency measures.⁴

We will not find jurisdiction simply "to consider basic legal questions even though plaintiff might derive some benefit in future litigation from a favorable adjudication of the question." (Citation and punctuation omitted.) Dean v. City of Jesup , 249 Ga....