IC v. Comstock Pub. Schs.

1

IC, Minor, by Next Friend MELISSA CARLSON, DP, Minor, by Next Friend ERIC PHARES, MB, Minor, by Next Friend CASSIE GUESS, and KW, Minor, by Next Friend BROOKE WARD, Plaintiffs-Appellants, v. COMSTOCK PUBLIC SCHOOLS, SARALYN BROWN, PAMELA DICKINSON, KAREN HOWES, PAUL LAMPHEAR, KAYLEEN O'DONNELL, DORINA SCHOLLY, MATTHEW SCHREINER, and JEFF THOENES, Defendants-Appellees.

No. 361425

Court of Appeals of Michigan

May 11, 2023

UNPUBLISHED

Kalamazoo Circuit Court LC No. 2022-000077-CZ

Before: SHAPIRO, P.J., and REDFORD and YATES, JJ.

PER CURIAM.

This appeal involves a challenge by parents, as next friends of their children attending Comstock Public Schools, to a mask requirement implemented by the school district to prevent the spread of COVID-19 that was in effect until February 28 2022. Given the elimination of the masking requirement, the trial court dismissed the case as moot. Plaintiffs appeal as of right. For the reasons set forth below, we affirm.

I. BACKGROUND

Plaintiffs challenge the validity of a policy, adopted by the school district during the COVID-19 pandemic, that required students to wear masks at school. The school district adopted the policy in August 2021, in keeping with then-current guidance from the Center for Disease Control and Prevention (CDC) and the Department of Health and Human Services (DHHS), and in compliance with orders from the Kalamazoo County Health Department that required masks in schools. The County Health Department rescinded masking requirements in December 2021 but substituted a masking advisory. Based on the advisory, the school district continued to require masks. On February 16, 2022, DHHS withdrew the masking advisory that all person wear face masks while indoors; it no longer recommended masking in schools. The same day, the County Health Department issued updated guidance in accordance with DHHS. Nine days later, on February 25, 2022, the school district withdrew its masking requirement, making masks optional for students, staff, and visitors as of February 28, 2022.

Between DHHS rescinding the masking advisory and the school district withdrawing its masking requirement, plaintiffs filed suit on February 23, 2022, challenging the school district's authority to mandate masks in schools. On the same day, a substitute circuit court judge granted plaintiff's ex parte request for a temporary restraining order (TRO). The school district filed an emergency motion to set aside the TRO or, in the alternative, for reconsideration of the temporary order. On February 25, 2022, Judge Lipsey, the circuit court judge assigned to the case, entered an order granting the district's motion and terminating the TRO. On May 3, 2022, the trial court entered an order granting summary disposition to the school district on the basis of mootness.

II. ANALYSIS

Plaintiffs raise three arguments on appeal. First, that Judge Lipsey lacked the authority to terminate the TRO. Second, that this case is not moot under the "voluntary cessation doctrine." Third, that the school district's adoption of the masking requirement was unlawful. Because of our conclusions as to the first two issues, we do not reach the third.

A. TERMINATION OF THE TRO

Plaintiffs assert that Judge Lipsey lacked the authority to terminate the TRO, arguing that only the "issuing judge" had the authority to do so. We disagree.

This case was assigned to Judge Lipsey in the normal order of business. On the day the plaintiffs' complaint was filed however, Judge Lipsey was unavailable and in accordance with normal procedure a different judge substituted for him in making the initial ruling, but the case was not transferred.^[1] Plaintiffs rely on MCR 3.310(G)(1) to claim that only the judge that granted the TRO may order its cessation. However, the rule does not so provide. It states that "[i]f a circuit judge has denied an application for an injunction or temporary restraining order . . . later application for the same purpose and in relation to the same matter may not be made to another circuit judge." MCR 3.310(G)(1) (emphasis added). The purpose of the rule is evident-to prevent a party from going from judge to judge in hopes of finding one that will grant the sought injunction. However, by its language, the rule does not apply to cases in which an injunctive order has been granted. Moreover, in moving to have the TRO terminated the school district was not judge-shopping. It was simply filing the motion to the judge who had been assigned the case and who in the normal course would have heard the initial request and ultimately would hear any request for a temporary or permanent injunction.

We also note that the initial issuance of the TRO lacked any basis. The ex parte request for a TRO violated multiple provisions of MCR 3.310(B). To obtain such an order the party seeking it must submit an affidavit or verified complaint stating "that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice" and a certification in writing setting forth what efforts were made to serve the defendant and the reasons why action must be taken without notice. MCR 3.310(B)(1)(a)-(b). But plaintiffs failed to file an affidavit or verified complaint. And plaintiffs' unverified complaint did not contain any assertion, let alone factual basis, that there was a danger of "immediate and irreparable injury" nor any information as to why the request needed to be heard ex parte. We find plaintiffs' argument based on MCR 3.310(B) to be wholly without merit.

B. MOOTNESS AND THE VOLUNTARY CESSATION DOCTRINE

Plaintiffs next argue that the trial court erred in dismissing the case as moot. Again, we disagree.

Issues related to mootness pose questions of law, which we review de novo. Equity Funding, Inc v Village of Milford, __Mich App__, __; __N.W.2d__ (2022) (Docket No. 357062); slip op at 3.

This Court's duty is to consider and decide actual cases and controversies. Generally, this Court does not address moot questions or declare legal principles that have no practical effect in a case. Mootness occurs when an event has occurred that renders it impossible for the court to grant relief. An issue is also moot when a judgment, if entered, cannot for any reason have a practical legal effect on the existing controversy. [Flynn v Ottawa Co Dep't of Pub Health__, Mich. App_, __; __N.W.2d __(2022) (Docket No. 359774); slip op at 5 (quotation marks and citation omitted).]

It is clear that with the withdrawal of the masking requirement, "it is impossible for the court to grant relief," i.e., there is no present conduct that the plaintiffs seek to enjoin.

Mootness, however, is not an inflexible doctrine, and there are several exceptions to the general rule. Turunen v Dir of Dep't of Nat'l Resources, 336 Mich.App. 468, 480; 971 N.W.2d 20 (2021). For example, a moot issue will nevertheless be reviewed if the issue is one of public significance that is "likely to recur in the future and yet evade judicial review." Flynn, __Mich App at __; slip op at 4. The trial court concluded that this general exception did not apply in this case, and plaintiffs have not challenged that conclusion on appeal.

Instead, plaintiffs argue more specifically that this case should not be considered moot in light of an exception in federal law to mootness known as the "voluntary cessation doctrine,"^[2]which provides:

"[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. A controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion." [Ed Subscription Serv, Inc v Am Ed Servs, Inc, 115 Mich.App. 413, 430; 320 N.W.2d 684 (1982) (alteration in original), quoting United States v WT Grant Co, 345 U.S. 629, 632; 73 S.Ct. 894; 97 L.Ed. 1303 (1953).]

Plaintiffs argue that we should adopt and apply the voluntary cessation doctrine here because the district's withdrawal of the policy occurred shortly after their lawsuit was filed and after an initial, albeit later vacated, order granting a TRO halting enforcement of the policy.

We agree that the school district voluntarily terminated the masking policy. However, the inquiry does not end there. Two other requirements must be met. First, in order to apply the doctrine, the cessation must have resulted from the district's attempt to moot this case rather than for some good faith reason. Second, the ability to resume the challenged conduct must be present and not speculative at the time of the suit.

As indicated above, the school district adopted the policy in question during August 2021, in keeping with then-current guidance from the CDC and DHHS, and in compliance with orders from the Kalamazoo County Health Department that required masks in schools. The County Health Department rescinded masking requirements in December 2021 but substituted a masking advisory to school districts to require masks. On February 16, 2022, DHHS withdrew the masking advisory that all persons...