GRAY v. GOVERNOR JANET T MILLS

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JERE GRAY, et al., )

Plaintiffs, )

)

v. ) 1:21-cv-00071-LEW

)

JANET T. MILLS, et al., )

)

Defendants )

ORDER ON MOTION TO DISMISS

Plaintiffs have brought this action against several current and former state officials,

seeking a declaratory judgment that the Defendants’ actions taken in response to the

ongoing COVID-19 pandemic violated their constitutional rights, as well as damages for

these alleged constitutional violations. But no matter which way Plaintiffs’ claims are

framed, this court lacks the power to grant the relief requested. Plaintiffs may not seek

damages, because Defendants are immune from suit in their individual capacities; nor may

Plaintiffs seek declaratory relief, because the challenged policies are no longer in effect.

PARTIES

Plaintiffs are Maine residents and businesses who allege that Maine’s emergency

public health measures have violated their constitutional rights. Their stories vary in the

particulars—medical conditions inadequately treated, childhood traumas forcibly relived,

religious worship foregone, entrepreneurial dreams denied—but they are united by a

common truth that, while this public health crisis has been challenging for everyone, it has

had a particularly devastating impact on a select few.

Defendants are current or former state officials. Janet T. Mills is Governor of Maine;

Dr. Nirav D. Shah is Director of the Maine Center for Disease Control and Prevention;

Jeanne M. Lambrew is Commissioner of the Maine Department of Health and Human

Services; Heather Johnson (together with Mills, Shah, and Lambrew, the “Executive

Defendants”) is Commissioner of the Department of Economic and Community

Development; Troy Jackson is President of the Maine Senate; and Sara Gideon (together

with Jackson, the “Legislative Defendants”) is the former Speaker of the Maine House of

Representatives. All except Gideon are sued in their official and personal capacities;

because Gideon had left public office by the time that this action commenced, she is named

in her individual capacity only.

BACKGROUND

In March of 2020, Governor Mills declared a State of Civil Emergency to respond

to the quickly-spreading COVID-19 pandemic, pursuant to her authority under the Maine

Emergency Management Act (“MEMA”), 37-B M.R.S. §§ 701 et seq.1 Over the course of

the ensuing fifteen months, Governor Mills issued a series of executive orders aimed at

slowing the effects of this devastating pandemic. The executive orders included limitations

on gathering sizes, see E.O. 14 FY 19/20, restrictions on travel, see E.O. 34 FY 19/20,

business closures, see E.O. 19 FY 19/20, and requirements that individuals wear face masks

1 MEMA authorizes the Governor to declare a state of emergency in response to imminent disasters, see 37-B M.R.S.

§ 742, and affords the Governor certain emergency powers during the duration of the emergency, including the power

to “[m]ake, amend and rescind the necessary orders” to respond to the emergency, id. § 741. Though a state of

emergency may not last longer than 30 days, the Governor unilaterally may renew or end a state of emergency. Id. §

743. Plaintiffs do not suggest that Governor Mills has violated MEMA, though they do (as discussed below) argue

that MEMA is itself unconstitutional.

in certain public settings, see E.O. 49 FY 19/20. Governor Mills continued to issue

executive orders throughout this fifteen-month time period to ensure that Maine’s

emergency public health measures remained in step with evolving expert guidance and

fluctuating infection rates in Maine, and also continually renewed the State of Civil

Emergency that authorized her to issue such orders. During the same period, Defendants

Shah, Lambrew, and Johnson issued coordinated mandates and policies to carry out

Governor Mills’ broader pandemic response.

Shortly after Governor Mills declared the State of Civil Emergency, the Maine

House of Representatives and Maine Senate (collectively, the “Legislature”) adjourned for

the remainder of the year to avoid the prospect of large legislative sessions spreading the

virus among legislators. Though members of both parties sought, at various times, to

reconvene the Legislature, the Legislature did not reconvene in full until March 2021—

nearly a full year after beginning its extended recess.

Governor Mills and the Executive Defendants regularly updated Maine’s

emergency public health measures to craft a tailored response to the pandemic that they

considered to be in line with expert guidance. Maine’s economy formally “reopened” from

the initial business closures and lockdowns on October 6, 2020. See E.O. 14 FY 20/21.

Most public face covering requirements were repealed on May 19, 2021, see E.O. 39 FY

20/21, and the final public gathering limits expired on May 24, 2021, see E.O. 35 FY 20/21,

E.O. 38 FY 20/21. By the end of this May, over seventy percent of eligible Mainers had

received at least one dose of the COVID-19 vaccine.2 On June 30, 2021, Governor Mills

declared an end to the State of Civil Emergency, and issued an Executive Order providing

for the phasing out of all previously-declared emergency responses to the pandemic. E.O.

40 FY 20/21. The final masking requirement—applicable to schools—expired on June 30,

2021, as did the last remaining travel restrictions. The other remaining emergency

measures were terminated between June 30, 2021, and August 31, 2021.

Plaintiffs commenced this action on March 9, 2021 and amended their complaint on

May 14, 2021. Plaintiffs’ allegations are manifold, and I will not recount them in detail

here. The gravamen of Plaintiffs’ complaint is that the State of Civil Emergency, Governor

Mills’ executive orders, and the policies adopted by the remaining Executive Defendants

to implement those orders violated several of their constitutional rights, including the right

to travel, the right to privacy, the right to free exercise of religion, and the right to be free

from takings without just compensation, among others. See generally First Amended

Complaint 83–110 (ECF No. 23) (“Complaint”). Plaintiffs also contend that the executive

orders issued pursuant to MEMA are invalid because MEMA represents an impermissible

delegation of legislative power to the Governor in violation of Maine’s constitution. See

Complaint 85. Lastly, Plaintiffs argue that the Legislature’s extended recess—specifically,

the Legislative Defendants’ and Governor Mills’ failure to reconvene the Legislature

during that time—violates federal and state constitutional protections for political speech

and the right to assemble. See Complaint 96–97. Plaintiffs request that I declare these

2 See Office of Governor Janet T. Mills, Governor Mills Announces Another Vaccination Milestone, STATE OF MAINE

(May 25, 2021), https://wwwmaine.gov/governor/mills/news/governor-mills-announces-another-vaccination-

milestone-70-percent-maine-people-12-and-older.

various actions to have been illegal, and, in addition, that I award them money damages.

See Complaint 111–12.

On July 20, 2021, Defendants moved to dismiss on multiple grounds. First,

Defendants argue that the cessation of all emergency measures challenged in Plaintiffs’

complaint renders this case moot. See Defs.’ Mot. 4–9 (ECF No. 33). Second, Defendants

argue that this Court cannot award the relief requested by Plaintiffs because Defendants

are immune from suit in their official capacities under the doctrine of sovereign immunity

and are immune from suit in their individual capacities under the doctrines of absolute

and/or qualified immunity. See Def.’s Mot. 9–10, 36–40. Finally, Defendants argue that

the case should be dismissed because Plaintiffs have failed to state a claim upon which

relief can be granted. See Def.’s Mot. 10–36.

DISCUSSION

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure

“raises the fundamental question whether the federal district court has subject matter

jurisdiction over the action before it.” United States v. Lahey Clinic Hosp., Inc., 399 F.3d

1, 8 n.6 (1st Cir. 2005) (citation and quotation marks omitted). A “trial court without

jurisdiction lacks ‘all authority to hear a case.’” United States v. Millenium Lab’ys, Inc.,

923 F.3d 240, 249 (1st Cir. 2019), (quoting United States v. Kwai Fun Wong, 575 U.S. 402,

409 (2015)). As a general rule, “courts must adjudicate plausible challenges to their

jurisdiction prior to adjudicating the merits of a case.” Brait Builders Corp. v.

Massachusetts, Div. of Cap. Asset Mgmt., 644 F.3d 5, 10 (1st Cir. 2011). When faced with

a motion to dismiss for lack of jurisdiction, I “ordinarily must resolve disputed facts” or

“choose among competing inferences.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365

(1st Cir. 2001).

I.

To start, Plaintiffs may not seek damages for the alleged constitutional violations,

because Defendants are immune from liability under the doctrines of absolute and qualified

immunity.

A.

Defendants are absolutely immune from suit with respect to the Legislature’s failure

to convene for nearly a year during the COVID-19 pandemic. State “legislators are entitled

to absolute immunity from liability under § 1983 for their legislative activities,” Bogan v.

Scott-Harris, 523 U.S. 44, 49 (1998) (citing Tenney v. Brandhove, 341 U.S. 367, 372–75

(1951)), which immunity “applies when . . . officials act ‘in a field where legislators

traditionally have power to act,’” Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 8 (1st Cir.

2000) (quoting Tenney, 341 U.S. at 379). Absolute immunity is a functional doctrine that

attaches to legislative actions rather than legislative positions, meaning that executive

branch officials are also absolutely immune from liability “when they perform legislative

functions.” Bogan, 523 U.S. at 55.

Defendants’ decisions around whether and when to convene the Legislature in the

face of a global pandemic are the sort of “quintessentially legislative” conduct that this

doctrine protects. Id. The Maine Constitution makes clear that such decisions are legislative

insofar as it empowers legislators to make them. See Me. Const. art. IV, pt. 3, § 1 (stating

that the Legislature shall vote on whether to convene for a special session). That the

Governor may also call the Legislature in to session “on extraordinary occasions” does not

remove this power from the field of legislative activity, but rather reaffirms that, in the

“[]ordinary” course of events, it remains a legislative power. See Me. Const. art. V, pt. 1,

§ 13. What’s more, looking to other legislative bodies makes clear that the decision of

whether and when to convene or adjourn a legislature is, and has traditionally been, a power

afforded to legislators.3 Accordingly, Defendants are immune from suit over the

constitutionality of the Legislature’s extended recess.

B.

Defendants are also immune from suit as to the rest of Plaintiffs’ claim for money

damages under the narrower doctrine of qualified immunity. Government officials sued in

their individual capacities “are immune from damages claims unless (1) they violated a

federal statutory or constitutional right, and (2) the unlawfulness of their conduct was

‘clearly established at the time.’” Irish v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020) (quoting

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting in turn Reichle v.

Howards, 566 U.S. 658, 664 (2012))). The unlawfulness of conduct is said to be “clearly

established” only when it is “dictated by controlling authority or a robust consensus of

cases of persuasive authority” such that any “reasonable official would understand that

what he is doing is unlawful.” Wesby, 138 S. Ct. at 589–90 (citations omitted).

Accordingly, officials are only liable “for violating bright lines, not for making bad guesses

3 See, e.g., U.S. Const. art. I, § 7 (providing that Congress need not consult the President on questions of adjournment);

Auth. of the House of Commons, Standing Order of the House of Commons 13,

https://publications.parliament.uk/pa/cm201516/cmstords/1154/body.htm#13 (providing that the Speaker of the

House of Commons retains the authority to call Parliament when into session when it is otherwise in recess).

in gray areas.” Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015) (citation

and quotation marks omitted).

Though Plaintiffs argue at length that Defendants violated several provisions of the

federal and state constitutions, they offer no controlling or even persuasive authority

making clear that this is so. Plaintiffs’ reliance on Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020), see Complaint 94 (citing Cuomo, 141 S. Ct. at 69), fails to

meet this bar. As an initial matter, as Cuomo was not decided until November 25, 2020, it

is only relevant for the purposes of qualified immunity, if at all, with respect to actions

taken after that date. See Wesby, 138 S. Ct. at 589 (law must be clearly established “at the

time” of alleged violation) (quoting Reichle, 566 U.S. at 664). What’s more, Cuomo was,

by its terms, limited to a factual context in which officials imposed incredibly restrictive

limits on houses of worship that were harsher than comparable limits placed on secular

businesses. Cuomo, 141 S. Ct. at 66–67. Maine’s limits on religious services were neither

as restrictive as those at issue in Cuomo nor discriminatory against religion. Compare E.O.

16 FY 20/21 (limiting all indoor gathering to no more than fifty people) with Cuomo, 141

S. Ct. at 66 (ten person gathering limit for houses of worship, but no such capacity limit

for certain “essential businesses”). To the contrary, shortly after Cuomo became controlling

law, Governor Mills updated Maine’s gathering limits to discriminate in favor of religious

institutions by permitting large houses of worship to exceed the generally applicable indoor

gathering limit. See E.O. 31 FY 20/21.

That Plaintiffs do not identify controlling authority on these issues is to be expected.

Faced with an unprecedented global health crisis, Defendants responded with

unprecedented public health measures, the constitutionality of which courts had not

previously had reason to address. A global pandemic is nothing if not the paradigmatic

gray area that calls for public officials to make the best guesses that they can, and

Defendants’ actions are precisely the sort that qualified immunity exists to protect.

II.

My analysis of the Plaintiffs’ claims for declaratory relief begins and ends with

mootness. “When a case is moot—that is, when the issues presented are no longer live or

when the parties lack a generally cognizable interest in the outcome—a case or controversy

ceases to exist,” and I must dismiss the case for lack of jurisdiction. Redfern v. Napolitano,

727 F.3d 77, 83–84 (1st Cir. 2013) (quoting Maher v. Hyde, 272 F.3d 83, 86 (1st Cir.

2001)). A “case is moot when the court cannot give any effectual relief to the potentially

prevailing party.” Bayley’s Campground, Inc. v. Mills, 985 F.3d 153, 157 (1st Cir. 2021)

(quoting Town of Portsmouth, R.I. v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016)). The party

moving to dismiss a case as moot bears the burden of establishing that the case is, in fact,

moot. See Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 8 (1st Cir. 2021).

As Defendants note, my analysis of this issue is guided by the First Circuit’s recent

decision in Boston Bit Labs, in which the Court of Appeals concluded that a challenge to

previously repealed COVID-19 protective measures in Massachusetts was moot. See Bos.

Bit Labs, 11 F.4th at 9. In Boston Bit Labs, the plaintiff challenged a gubernatorial

executive order that permitted certain types of businesses to open to the public while

mandating that others remained closed. Id. at 7. The district court, noting that the governor

had amended the challenged order in a manner that permitted the plaintiff’s business to

open, dismissed as moot the plaintiff’s suit for declaratory and injunctive relief. Id. The

Court of Appeals affirmed, noting that with “the offending executive order wiped away,

there [was] nothing harming” the plaintiff. Id. at 9.

I see no reason why the present case is any different. Plaintiffs focus their challenge

on the State of Civil Emergency and four categories of executive orders and administrative

guidance issued pursuant thereto: face mask mandates, travel restrictions and quarantine

requirements, gathering limits, and business closures. But Governor Mills ended the State

of Civil Emergency on June 30, and none of the challenged emergency measures are still

in place.4 Likewise, to the extent that Plaintiffs challenge the Legislature’s decision to

refuse to convene for nearly a year, they take issue with past events for which I have no

authority to provide redress—as Plaintiffs acknowledge, the Legislature fully reconvened

in March 2021. Complaint 28. Thus, even if I were to reach the merits of this case, there

simply would be “no ongoing conduct to” declare unconstitutional. Town of Portsmouth,

R.I., 813 F.3d at 58.

A.

Plaintiffs contend that their claims are not moot because “Defendants have

voluntarily terminated” the challenged emergency measures while leaving open the

possibility that the measures could be re-instituted at any point in the future. Pls.’ Opp’n

4 Though Plaintiffs’ non-delegation claim is ultimately an argument against the constitutionality of MEMA, the fact

that MEMA itself remains in place does not save that claim from mootness. As Governor Mills has repealed the

offending executive orders and ended the State of Civil Emergency, Plaintiffs no longer have the requisite “personal

interest at stake” to challenge MEMA’s validity. Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n.3 (1st Cir.

2000).

14 (ECF No. 36). But the mere fact that Defendants themselves chose to revoke the

challenged policies cannot save this case from mootness.

A “defendant’s voluntary cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the practice,” City of Mesquite v.

Aladdin’s Castle, 455 U.S. 283, 289 (1982), so long as there exists “a reasonable

expectation that the challenged conduct will be repeated following dismissal of the case.”

Am. C.L. Union of Massachusetts v. U.S. Conf. of Cath. Bishops, 705 F.3d 44, 56 (1st Cir.

2013). The burden is on the party raising mootness to make “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). This exception

to the mootness doctrine reflects the common-sense principle that a defendant should not

be able to evade litigation by temporarily and unilaterally abandoning a challenged practice

just until the clouds of litigation have cleared. Bos. Bit Labs, 11 F.4th at 10. As a result, a

voluntary change in conduct only defeats mootness where a defendant changes her conduct

in response to litigation. See id.

I find this exception to mootness inapplicable for two reasons. First, Defendants

have made abundantly clear that Plaintiffs cannot reasonably expect the alleged harms to

reoccur. Maine’s State of Civil Emergency, which expanded Governor Mills’ authority to

issue emergency executive orders, expired on June 30, 2021. See E.O. 40 FY 20/21. And

although Governor Mills retains the constitutional authority to reinstate the State of Civil

Emergency or other extraordinary public health measures, she has not done so even in the

face of a recent “uptick” in Maine’s COVID-19 case count. Bos. Bit Labs, 11 F.4th at 11–

12 (rejecting voluntary cessation argument in similar factual context). Indeed, the

Governor’s chief legal counsel expressly rejected the likelihood of such orders being

reimposed. Reid Aff. ¶¶ 14–17 (ECF No. 32). This is because—as Plaintiffs themselves

acknowledge—“conditions on the ground have changed,” with most Mainers now

vaccinated against the disease and government officials are now better informed as to

which targeted public health interventions are most effective. Complaint 7–8

Second, the evidence suggests that Defendants’ abandonment of the challenged

measures constituted a series of good-faith policy changes in response to an evolving public

health crisis, rather than an attempt to evade litigation. In Boston Bit Labs, the First Circuit

rejected the possibility that the defendant there had amended the challenged executive

order in response to litigation—even though the change came “[j]ust days” after the

plaintiffs filed suit—because the amended order coincided with a genuine change in public

health conditions. See Bos. Bit Labs, 11 F.4th at 7, 10. Here, Governor Mills repealed the

challenged emergency response measures on June 30, 2021—nearly three months after

Plaintiffs filed the initial complaint, but only five weeks after Maine reached the important

milestone of providing a first dose of the COVID-19 vaccine to over seventy percent of

eligible Mainers.5 What’s more, both the text of Governor Mills’ order ending the State of

Civil Emergency and subsequent representations of her legal counsel make clear that the

5 The five-week delay is itself a relevant data point. The COVID-19 vaccine requires a waiting period of three weeks

between doses, and is generally thought to become fully effective two weeks after the second dose, suggesting that

Maine’s State of Civil Emergency ended around the time that approximately two-thirds of eligible Mainers were fully

inoculated against to COVID-19.

Governor chose to end the emergency public health measures at that time because the

public health situation in Maine had improved. See E.O. 40 FY 20/21; Reid Aff. ¶ 12.

Plaintiffs rely on cases from earlier in the COVID-19 pandemic in which courts

declined to dismiss as moot challenges to emergency pandemic response measures that had

been abandoned. See Pls.’ Opp’n at 15 (citing Cuomo, 141 S. Ct. at 68, and Bayley’s

Campground, 985 F.3d at 157). But those cases were decided during the height of the

global pandemic, when officials “regularly change[d]” pandemic response measures

“without prior notice,” see Cuomo, 141 S. Ct. at 68, often updating regulations every few

days, see id. at 68 n.3. By contrast, rising vaccination rates and a growing understanding

of how COVID-19 spreads have brought greater stability to state COVID-19 responses—

Governor Mills repealed the challenged executive orders several months ago and has not

issued any similar executive orders since. In this context, a lasting change in public policy

in response to changing expert guidance is sufficient to moot Plaintiffs’ claims

notwithstanding the theoretical possibility that Defendants could reinstitute similar

policies. Even if Defendants were to institute similar policies in the future, Plaintiffs would

have ample opportunity to press their claims at that time, as discussed in the following

section.

B.

Plaintiffs also suggest that their claims are not moot insofar as they are “capable of

repetition, yet evad[e] review.” Complaint 19 (quoting City of Los Angeles v. Lyons, 461

U.S. 95, 109 (1983)). Under this doctrine, a case that would otherwise be moot is deemed

justiciable if the plaintiff can show that “(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be subjected to the same action again.”

Gulf of Me. Fisherman’s All. v. Daley, 292 F.3d 84, 89 (1st Cir. 2002) (quoting Weinstein

v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). But Plaintiffs’ arguments fail on both

fronts.

The challenged orders were in place long enough that Plaintiffs could have fully

litigated them prior to their expiration. Maine’s State of Civil Emergency and the attendant

series of executive orders were in place for over fifteen months, while the Legislature was

in recess for nearly twelve months. During this time, several challenges to public health

measures in Maine and elsewhere were litigated at least far enough to grant or deny

preliminary injunctive relief, including multiple cases that were litigated all the way to the

Supreme Court. See, e.g., Valentine v. Collier, 141 S. Ct. 57 (2020) (denying application

to vacate stay); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020);

Bayley’s Campground, 985 F.3d 153. By contrast, Plaintiffs waited twelve months after

the State of Civil Emergency began before filing this suit for declaratory relief. That their

claims are now moot has little to do the pace of litigation, and everything to do with their

own delay.

Nor can Plaintiffs reasonably expect that Maine will instate similar public health

measures in the future. Plaintiffs correctly note that Defendants updated the challenged

public health measures repeatedly throughout the State of Civil Emergency, often reversing

a prior decision shortly after it was made. See Complaint 20. But Defendants have not

imposed any new public health restrictions in the four months since the State of Civil

Emergency ended and have disavowed any intention of doing so. See Reid. Aff. ¶¶ 14–17.

Plaintiffs’ claims for declaratory relief, then, must be dismissed as moot.

CONCLUSION

Defendants’ Motion to Dismiss is GRANTED.

SO ORDERED.

Dated this 5th day of November, 2021.

/s/ Lance E. Walker

UNITED STATES DISTRICT JUDGE