Clark v. Governor of New Jersey

53 F.4th 769

Charles CLARK, III; Solid Rock Baptist Church, New Jersey not-for-profit corporation; Bible Baptist Church of Clementon, New Jersey not-for-profit corporation; Charles Clark, Jr.; Pastor Andrew Reese, Appellants

v.GOVERNOR OF the State of NEW JERSEY; Attorney General of the State of New Jersey; Patrick J. Callahan, Superintendent of State Police and State Director of Emergency Management in his official capacities; Jill S. Mayer; Thomas J. Weaver ; Chief Charles Grover; Rick Miller; Millard Wilkinson; Richard A. De Michele; Cheryl R. Hendler Cohen

No. 21-2732

United States Court of Appeals, Third Circuit.

Argued August 23, 2022

Filed: November 28, 2022

David C. Gibbs, Jr., Jonathan D. Gibbs, Seth J. Kraus, Gibbs & Associates, 6398 Thornberry Court, Mason, OH 45040, Brian D. Tome [Argued], Reilly McDevitt & Henrich, 3 Executive Campus, Suite 310, Cherry Hill, NJ 08002, Walter S. Zimolong, III, Zimolong LLC, P.O. Box 552, Villanova, PA 19085, Counsel for Appellants

Matthew J. Berns^* [Argued], Jeremy Feigenbaum, Robert J. McGuire, Daniel M. Vannella, Office of Attorney General of New Jersey, Division of Law, 25 Market Street, Hughes Justice Complex, Trenton, NJ 08625, Counsel for Appellees Governor of New Jersey, Attorney General of New Jersey, Patrick J. Callahan

George J. Botcheos, 1202 Laurel Oak Road, Suite 208, Voorhees, NJ 08043, Counsel for Appellee Thomas J. Weaver, Charles Grover, Cheryl R. Hendler-Cohen

Before: Greenaway, Jr., Matey, and Rendell, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Once again, we have been asked to decide whether a challenge to long defunct COVID-19 pandemic restrictions presents a justiciable controversy.¹ Because the in-person gathering limits complained of here were rescinded over two years ago and it is absolutely clear their return could not reasonably be expected to recur, we hold that the case is moot.

I. BACKGROUND

A.

In March 2020, New Jersey Governor Philip Murphy took a series of measures to respond to the spread of COVID-19.² In Executive Order ("EO") 103, he declared a state of emergency pursuant to the Civilian Defense and Disaster Control Act, N.J. Stat. Ann. § A:9-33, et seq., as well as a public health emergency pursuant to the Emergency Health Powers Act, N.J. Stat. Ann. § 26:13, N.J. Stat. Ann. These declarations empowered the Governor to issue follow-up orders addressing the pandemic, an authority he went on to use.

On March 21, Governor Murphy issued EO 107, which, inter alia , prohibited in-person gatherings and ordered New Jersey residents to "remain home or at their place of residence," except for certain approved purposes, such as an "educational, political, or religious reason." See Solid Rock Baptist Church v. Murphy , 480 F. Supp. 3d 585, 589 (D.N.J. Aug. 20, 2020) (citing N.J. Exec. Order 107 ¶ 2 (Mar. 21, 2020)) (" Solid Rock I "). EO 107 excepted certain categories of businesses deemed "essential," including grocery and liquor stores, which could continue to welcome any number of persons (consistent with social distancing guidelines). Id. at 588–89. Violations of EO 107's proscriptions were enforceable by criminal prosecution for "disorderly conduct," N.J. Stat. Ann. § App. A:9-49. Further, the order granted Defendant-Appellee Colonel Patrick Callahan, Superintendent of the State Police, "discretion to make clarifications and issue [related] orders[.]" N.J. Exec. Order 107 ¶ 6 (Mar. 21, 2020). He exercised that power the same day EO 107 was signed, declaring in Administrative Order No. 2020-4 that gatherings of ten or fewer persons were presumptively permitted.³ Neither EO 107 nor AO 2020-4 contained an exception for religious worship gatherings or other First Amendment-protected activity.

B.

Plaintiff-Appellants are two New Jersey-based, Christian congregations, Solid Rock Baptist Church and Bible Baptist Church of Clementon, and their respective pastors, Andrew Reese and (as co-pastors) Charles Clark III and Charles Clark, Jr. Appellants believe that the Holy Bible requires them to gather for in-person worship services. Although both congregations switched to online services in the wake of the Governor's gathering restrictions, by late May 2020 they had resolved to defy those rules and return to in-person worship. After informing state authorities of their intention to do so, the two churches held services with more than ten persons in attendance. Local police, executive officials, and prosecutors—several of whom are named Defendant-Appellees⁴ —then participated in issuing and pursuing criminal complaints against the Pastors for their violations of EO 107 and AO 2020-4.

Aggrieved by these actions, Appellants filed a complaint in the United States District Court for the District of New Jersey on June 3, 2020, naming Governor Murphy, New Jersey Attorney General Gurbir Grewal, Superintendent Callahan, and a slew of local officials as defendants. In the complaint, Appellants "challenge[d] Executive Order No. 107 ... as further clarified by Administrative Order No. 2020-4," App. 36, asserting that the orders discriminated against religion by effectively closing churches while permitting secular activities deemed "essential" to operate unimpeded, App. 37. Appellants sought relief in the form of "a preliminary and permanent injunction enjoining Defendants or their designees or agents from enforcing the challenged Orders under any ‘social distancing’ requirements different from those governing ‘essential’ businesses or services," "a declaratory judgment and preliminary and permanent injunction that the challenged Orders are unconstitutional, on their face and as applied," and an award of costs, including attorneys' fees. App. 54. They did not seek damages.

C.

Less than a week after the complaint was filed, on June 9, 2020, Governor Murphy rescinded EO 107 in relevant part. In EO 152, the Governor raised indoor gathering limits to fifty persons or twenty-five percent room capacity (whichever was less); the order also permitted outdoor religious gatherings without any gathering limits , in recognition of the "particular[ ] importan[ce]" of "religious services" to the functioning of society. See N.J. Exec. Order 152 at 4, ¶ 2(f) (June 9, 2020) (further excepting outdoor political gatherings, such as "protests"). The same day, EO 153 rescinded EO 107's general stay-at-home requirement. N.J. Exec. Order 153 ¶ 11 (June 9, 2020).

EOs 152 and 153 presaged a trend; in the months that followed, Governor Murphy progressively relaxed the restrictions applicable to religious worship services. On June 22, 2020, EO 156 further loosened the restrictions applicable to Appellants, raising the maximum number of persons allowed at an indoor gathering to 100. N.J. Exec. Order 156 ¶ 1 (June 22, 2020).⁵ On September 1, EO 183 permitted religious gatherings of up to 150 persons. N.J. Exec. Order 183 ¶ 4 (Sept. 1, 2020) (retaining a twenty-five-person limit for generic secular gatherings). When COVID-19 case rates trended sharply upward in November, gathering limits were tightened for many contexts, but worship services were excepted and retained the limits set forth in EO 183. See N.J. Exec. Order 196 at 3, ¶ 1 (stating that "religious services" are "constitutionally protected").

On February 3, 2021, EO 219 increased the general gathering limit to 150 persons or thirty-five percent capacity and, on February 22, EO 225 set a new gathering limit for indoor religious services of fifty percent room capacity, with no numerical limit. See N.J. Exec. Order 219 ¶ 3 (Feb. 3, 2021); N.J. Exec. Order 225 at 3–4, ¶ 1 (Feb. 22, 2021) ("[A]t certain times, restrictions on [religious worship] gatherings should be less aggressive than restrictions on other gatherings[.]"); see also N.J. Exec. Order 230 at 5 (Mar. 11, 2021) ("[R]estrictions on [religious worship] gatherings should be less aggressive than restrictions on other gatherings[.]").

Ultimately, on May 12, 2021, Governor Murphy issued EO 239, which eliminated the remaining fifty percent capacity gathering restriction applicable to religious worship. See N.J. Exec. Order 239 ¶ 6 (May 12, 2021) (conditioning worship service attendance on the need for social distancing only). In EO 239, the Governor explained that this policy adjustment was driven by, among other things: (1) the "critical knowledge" that had been gained regarding COVID mitigation strategies; (2) "expanded access to testing, personal protective equipment, and other materials"; (3) reduced infection and hospitalization rates; and (4) the substantial progress in vaccination rollout. See id. at 4. On May 24, 2021, EO 242 lifted all remaining numerical gathering limits for non-religious contexts and rescinded the general social distancing guideline for religious services. N.J. Exec. Order 242 ¶¶ 4–6 (May 24, 2021). On June 4, 2021, EO 244 ended the public health emergency in the state. N.J. Exec. Order 244 ¶ 1 (June 4, 2021).

D.

Governor Murphy's gradual loosening of restrictions impacted Appellants' parallel action in the District Court. On August 8, 2020, the District Court denied Appellants' motion for a preliminary injunction—which had demanded permission to worship in groups larger than ten persons—holding that the very relief requested had been, "in effect, granted through the enactment of Executive Order 156 [permitting 100 persons or twenty-five percent capacity at all indoor gatherings]." Solid Rock I , 480 F. Supp. 3d at 588. The District Court reasoned that EO 156 thus mooted the claim for relief and denied without prejudice the remaining claims, which are not relevant to this appeal. Id. at 601.

One month later, Appellants filed an amended complaint. Solid Rock Baptist Church v. Murphy (Solid Rock II ), 555 F. Supp. 3d 53, 57 (D.N.J. 2021). Again, they presented a narrow claim "challeng[ing] Executive Order ("EO") No. 107" as "further clarified by Administrative Order ("AO") No. 2020-4." Id. at 56. The amended complaint focused exclusively on the...