Calvary Chapel Bangor v. Mills

• Decision Date: 04 June 2021
• Docket Number: Docket No. 1:20-cv-00156-NT
• Citation: 542 F.Supp.3d 24
• Parties: CALVARY CHAPEL OF BANGOR, Plaintiff, v. Janet MILLS, Defendant.
• Court: U.S. District Court — District of Maine

542 F.Supp.3d 24

CALVARY CHAPEL OF BANGOR, Plaintiff,

v.Janet MILLS, Defendant.

Docket No. 1:20-cv-00156-NT

United States District Court, D. Maine.

Signed June 4, 2021

Charles W. Hodsdon, II, Bangor, ME, Daniel J. Schmid, Pro Hac Vice, Horatio G. Mihet, Pro Hac Vice, Mathew D. Staver, Pro Hac Vice, Roger K. Gannam, Pro Hac Vice, Liberty Counsel, Orlando, FL, for Plaintiff.

Christopher C. Taub, Sarah A. Forster, Office of the Attorney General, Augusta, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S PENDING MOTIONS FOR INJUNCTIVE RELIEF

Nancy Torresen, United States District Judge

On Tuesday, May 5, 2020, Plaintiff Calvary Chapel of Bangor ("Calvary Chapel ") filed a ten-count Complaint (ECF No. 1) against Janet Mills, Governor of Maine (the "Governor " or "Governor Mills "), alleging that the Governor's orders issued in response to COVID-19, which at the time limited the size of gatherings to ten people, violated Calvary Chapel's constitutional and statutory rights. Along with its Complaint, Calvary Chapel filed a motion for a temporary restraining order and preliminary injunction (ECF No. 3). I denied the motion for a temporary restraining order on May 9, 2020 (ECF No. 27), and I subsequently denied the Plaintiff's motion for injunction pending appeal (ECF No. 33). On December 22, 2020, the First Circuit dismissed Calvary Chapel's appeal for lack of appellate jurisdiction¹ (ECF No. 38). Since my May 9, 2020 Order, Governor Mills has amended her orders, loosened the restrictions on gatherings, and ultimately removed all limits on gatherings. At no time did Calvary Chapel seek to amend its Complaint despite an invitation from the Defendant to do so. Def.’s Opp'n to Pl.’s Prelim. Inj. Mot. ("Def.’s Opp'n ") 8 (ECF No. 51). Governor Mills has now moved to dismiss the Complaint as moot (ECF No. 43), and Calvary Chapel has filed a renewed motion for a preliminary injunction (ECF No. 45). For the reasons set forth below, the Governor's motion is GRANTED , and Calvary Chapel's motion is DENIED .

BACKGROUND

I. The COVID-19 Pandemic and Maine's Response

The 2019 Novel Coronavirus ("COVID-19 ") is a respiratory illness caused by a coronavirus known as SARS-CoV-2. Decl. of Nirav Dinesh Shah, M.D., J.D.² ¶ 9 ("Shah Decl. ") (ECF No. 20). COVID-19 was first identified in January of 2020, and it has since swept the globe. Shah Decl. ¶¶ 9, 11. On January 31, 2020, the United States Department of Health and Human Services determined that COVID-19 constituted a nationwide public health emergency. Shah Decl. ¶ 10. On March 11, 2020, the World Health Organization declared a global pandemic. Shah Decl. ¶ 10. On March 13, 2020, President Donald Trump declared a National Emergency.³

When Calvary Chapel filed its Complaint in May of 2020, less was known about COVID-19, see Decl. of Gerald D. Reid ("Reid Decl. ") ¶ 3 (ECF No. 44), though experts believed that it spread (1) through respiratory droplets produced when an infected person coughs, sneezes, or talks; (2) through close personal contact, such as touching or shaking hands; and (3) through touching an object or surface containing the virus and then touching one's mouth, nose, or eyes, Shah Decl. ¶ 13. Experts also believed that the virus could travel up to six feet through the air, and that it could live on surfaces, such as cardboard, for up to twenty-four hours. Shah Decl. ¶ 14. At the time, there was neither a vaccine for COVID-19 nor any effective pharmaceutical treatment. Shah Decl. ¶ 18; Reid Decl. ¶ 11. Thus, experts advised that the most effective way to control the virus was to practice "social distancing," also referred to as "physical distancing." Shah Decl. ¶ 19.

In the months since Calvary Chapel filed its Complaint, COVID-19 cases have risen and fallen in the United States and in Maine, and vaccines for the virus have been developed and distributed. Reid Decl. ¶¶ 7, 11. From March 2020 to mid-October 2020, the rate of new COVID-19 cases in Maine was relatively stable. Reid Decl. ¶ 7. There were never more than fifty new cases a day in the State, and only rarely were there more than thirty new cases in a day. Reid Decl. ¶ 7. At the end of October of 2020, however, Maine began to experience a dramatic increase in new cases. Reid Decl. ¶ 7. Ninety-eight new cases were reported on October 31, 249 new cases were reported on November 30, and 590 new cases were reported on December 30. Reid Decl. ¶ 7. This rise peaked on January 15, 2021, when 823 new cases were reported. Reid Decl. ¶ 7. The state has since seen a decline in new cases, with 301 reported on February 4, 2021. Reid Decl. ¶ 7. On June 3, 2021, Maine CDC reported seventy-seven new cases, see New Daily COVID-19 Cases, Me. Ctr. for Disease Control & Prevention, available at https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus/data.shtml (last visited June 4, 2021), and the State of Maine's COVID-19 Vaccination Dashboard reflects that 60.09% of Maine's eligible populace has received final doses of the COVID-19 vaccine, see COVID-19 Vaccination Dashboard, Office of the Governor, available at https://www.maine.gov/covid19/vaccines/dashboard (last visited June 4, 2021).⁴

II. Maine's Efforts to Combat COVID-19

Throughout the last year, Governor Mills has issued numerous executive orders addressing the COVID-19 health crisis. Most of the orders at issue in this case restricted the size of gatherings and the number of people permitted inside buildings. Because the restrictions have changed since Calvary Chapel filed its Complaint, I discuss these orders chronologically. First, I address the Governor's early response to COVID-19 and the orders that were in place when Calvary Chapel filed its Complaint. Next, I discuss Calvary Chapel's challenge to these orders. And finally, I turn to the orders the Governor issued in the subsequent months.

A. Executive Orders Before May 5, 2020

Governor Mills declared a "state of emergency" in Maine on March 15, 2020. Proclamation of State of Civil Emergency to Further Protect Public Health ("Emergency Proclamation ") (ECF No. 1-1). In that Emergency Proclamation, Governor Mills stated that COVID-19 "poses an imminent threat of substantial harm to our citizens" and directed various state agencies to implement certain restrictions and orders to facilitate the State's response. Emergency Proclamation, at 1. Governor Mills has issued proclamations renewing the state of emergency every month since. Def.’s Mot. to Dismiss ("Def.’s Mot. ") 2 n.1 (ECF No. 43) (citing Proclamations, Office of Governor Janet T. Mills, https://www.maine.gov/governor/mills/official_documents/proclamations).

In the early days of the COVID-19 pandemic, Maine took an extremely cautious approach with respect to activities that could pose risks of transmitting the virus. Reid Decl. ¶ 3. On March 18, 2020, Governor Mills issued Executive Order 14 FY 19/20, which stated that "[g]atherings of more than 10 people are prohibited throughout the State" and declared that such a prohibition was mainly aimed at "social, personal, and discretionary events," including those gatherings that are "faith-based."⁵ An Order to Protect Public Health ("Executive Order 14 FY 19/20 "), at 1 (ECF No. 1-2).

Then, on March 24, 2020, Governor Mills issued Executive Order 19 FY 19/20 ("Executive Order 19 ") (ECF No. 1-3). This Order continued the prohibition of all gatherings of more than ten people but carved out an exemption for businesses deemed "essential." Businesses deemed "essential" were permitted to continue operations subject to the requirement that they adhere to social distancing guidelines—maintaining a six-foot distance between individuals—and other "social distancing requirements." Executive Order 19, at 2. Under the Order, essential businesses included "grocery and household goods" stores, "gas stations," and "home repair, hardware and auto repair" stores. Executive Order 19, at 2. Executive Order 19 ordered "non-essential" businesses to cease activities at public-facing sites, but it permitted them to conduct limited activities, provided that the activities did "not allow customer, vendor or other visitor in-person contact"; did "not require more than 10 workers to convene in space where social distancing [was] not possible"; and were "facilitated to the maximum extent practicable by employees working remotely." These non-essential businesses included "shopping malls, theaters, casinos, fitness and exercise gyms ... and similar personal care and treatment facilities." Executive Order 19 at 3.

On March 31, 2020, Governor Mills next issued Executive Order 28 FY 19/20, which stated: "[a]ll persons living in the State of Maine are hereby ordered, effective as of 12:01 AM on April 2, 2020 to stay at their homes or places of residence." An Order Regarding Further Restrictions on Public Contact and Movement, Schools, Vehicle Travel and Retail Business Operations ("Executive Order 28 "), at 2 (ECF No. 1-4). Executive Order 28 only permitted residents to travel out of their homes if they were conducting "Essential Activities" or traveling to work at a business allowed to continue operations.⁶ Executive Order 28, at 2. On April 3, 2020, Governor Mills issued a list further explaining which businesses were considered "essential" and "non-essential." Essential Business Operations Definitions (ECF No. 1-5). The list of "essential" businesses included grocery stores, household goods stores, gas stations, hardware stores, home repair stores, garden stores, child-care services, and medical marijuana dispensaries.

Later that month, on April 10, 2020, Governor Mills issued Executive Order 28-A FY 19/20, which placed limits on the number of customers permitted inside retail stores at any one time—permitting five people for buildings of less than 7,500 square feet, fifteen people for buildings between 7,500 and 12,000 square feet, thirty-five people for buildings between 12,000 and 18,000 square feet,...