Professional Documents
Culture Documents
Calvary Chapel V Mills Opinion
Calvary Chapel V Mills Opinion
Plaintiff, Appellant,
v.
Defendant, Appellee.
Before
as our de novo review of the matter shows, see Bos. Bit Labs, Inc.
one side, Maine Governor Janet Mills ("the Governor") on the other
these.
- 2 -
Issued March 24, Executive Order 19 FY 19/20 allowed
- 3 -
also set customer limits based on the facilities' square footage
for buildings between 7,500 and 25,000 square feet, 50 people for
buildings between 50,000 and 75,000 square feet, and 100 people
seemed "to be flattening the curve against COVID-19," the plan (we
gathering limit, stage 1 (to start May 2020) allowed the re-opening
Stage 3 (to start July or August 2020) foresaw keeping the 50-
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
stage."
of Bangor v. Mills ("Calvary I"), 984 F.3d 21, 26 (1st Cir. 2020),
- 5 -
B
"houses of worship," the order read. And the order stated that
opening plan.
- 7 -
D
week after that, on February 18, Calvary moved the judge for a
which, Calvary continued, meant that its claims were "not moot"
- 8 -
"capable of repetition yet evading review" (more on these shortly)
The Governor (to quote the order) took that step based on expert
- 9 -
made such limits "no longer necessary to protect the public
health."
such treatment for nearly four months" (i.e., since February 2021).
The judge also found no mootness exception helped Calvary, for two
- 10 -
here says that even "now," i.e., "up to the present," it cannot
restrictions — ended in June 2021. And the Governor has not since
II
applies "at all stages of review, not merely at the time the
U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401
(1975)); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
- 11 -
commission to publicly opine on every legal question"). A suit
their psyches, which might remain deeply engaged with the merits
Air Line Pilots Ass'n, Int'l v. UAL Corp., 897 F.2d 1394, 1396
(7th Cir. 1990) (Posner, J., for the panel)); see also Aetna Life
Ins. v. Haworth, 300 U.S. 227, 241 (1937) (commenting that federal
federal court could have given [it]," the case is "moot" and must
Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245, 1250 (10th Cir.
omitted)).
- 12 -
The first exception — voluntary cessation — holds that
declared moot, then pick up where [she] left off, repeating the
cycle until [she] achieves all [her] unlawful ends." See Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013); accord Bos. Bit Labs,
11 F.4th at 10. But this exception "'does not apply' if the change
again." See Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
43 F.4th 187, 194 (1st Cir. 2022). Though often invoked, this
(2016).
does not apply." See id. at 10 (citing Friends, 528 U.S. at 190).
find for many reasons that the Governor has made it absolutely
ones.
cert. filed, (U.S. Aug. 23, 2022) (No. 22-181). And given the
clear through her actions that she did not ease and then end the
the public health." Remember as well how when she ended the state
- 16 -
Calvary's suit.6 So not to put too fine a point on it, but we see
no hint that the Governor will "pick up where [she] left off" if
the case is declared moot. See Already, LLC, 568 U.S. at 91. Far
from it, for the Governor has shown that she changed course for
is that the suit cannot be moot because "the Governor retains the
which held:
See 11 F.4th at 10 (first citing N.Y. State Rifle & Pistol Ass'n,
Inc. v. City of N.Y., 140 S. Ct. 1525, 1526 (2020) (per curiam),
141 S. Ct. 716 (2021) (mem.), Harvest Rock Church, Inc. v. Newsom,
141 S. Ct. 1289 (2021) (mem.), and Tandon v. Newsom, 141 S. Ct.
1294 (2021) (per curiam) — four Supreme Court cases that granted
- 18 -
injunctions pending appeal of certain COVID-19 restrictions.
for Bayley's Campground, Inc. v. Mills, 985 F.3d 153 (1st Cir.
Isr. of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020), Calvary Chapel
Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020), Calvary
Chapel Lone Mt. v. Sisolak, 831 F. App'x 317 (9th Cir. 2020)
341 (7th Cir. 2020), cert. denied, 141 S. Ct. 1753 (2021). And
- 19 -
religious exercises worse than secular activities, even during a
Sanchez-Gomez, 138 S. Ct. 1532 (2018), and pulled the second and
171 (4th Cir. 2022) (holding that the governor's decision not to
unlikely" and adding that "it has become clear" over time "that
(citing among other cases Bos. Bit Labs, 11 F.4th at 12, and Hawse,
- 20 -
"has laid the groundwork for imposing more, not fewer[,]
restrictions going forward" and so has not shown that she will
laying (the key premises of this thesis) can hold up when (as we
keep saying) the Governor ended the state of emergency and has not
imposed restrictions similar to the old ones since (we repeat again
COVID-19 restrictions that have not been in place for more than a
COVID-19 cases caused by the Delta and Omicron variants," and "[i]f
there were any reasonable chance that the Governor might reimpose
should have been the occasion for doing so" — "[b]ut they were
- 21 -
the same legal dispute as the one alleged in Calvary's complaint.
Bos. Bit Labs's mootness analysis holds no sway here because that
case involved the First Amendment's free speech clause, while this
need only note (without delving into the merits) that because
again." See Weinstein, 423 U.S. at 149. And because (for the
- 22 -
F.4th at 530 (finding "[t]his exception is inapposite for largely
also Doe v. Hopkinton Pub. Sch., 19 F.4th 493, 511 (1st Cir. 2021)
"second prong"). See generally Murphy v. Hunt, 455 U.S. 478, 482
them in the district court when mootness concerns first took center
stage after the Governor moved to dismiss the suit (and Calvary
Bros. Grp., LLC, 863 F.3d 65, 66 (1st Cir. 2017). And second,
- 23 -
course express no view on the likely outcome of such a suit). See
III
- 24 -