City of Lynn v. Murrell

• Citation: 489 Mass. 579,185 N.E.3d 912
• Decision Date: 02 May 2022
• Docket Number: SJC-13193
• Parties: CITY OF LYNN v. Ariana MURRELL.
• Court: United States State Supreme Judicial Court of Massachusetts

489 Mass. 579

185 N.E.3d 912

CITY OF LYNN¹

v.Ariana MURRELL.²

SJC-13193

Supreme Judicial Court of Massachusetts, Essex.

Argued February 2, 2022.

Decided May 2, 2022.

William E. Gens, Boston, for the defendant.

James F. Wellock, Assistant City Solicitor, for the plaintiff.

Kimberly Parr, Assistant Attorney General, for the Commonwealth.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

On March 10, 2020, Governor Charles D. Baker, Jr. (Governor), according to his authority under the Civil Defense Act, St. 1950, c. 639, and G. L. c. 17, § 2A, and in response to the emergence of the COVID-19 pandemic in the Commonwealth, declared a state of emergency. See Desrosiers v. Governor, 486 Mass. 369, 373, 158 N.E.3d 827 (2020). During this state of emergency, which eventually ended on June 15, 2021, the Governor issued sixty-nine emergency orders. See Order Announcing the Termination of the March 10, 2020 State of Emergency and Rescinding COVID-19 Executive Orders Issued Pursuant to the Massachusetts Civil Defense Act, COVID-19 Order No. 69 (May 28, 2021) (Order 69). The defendant, Ariana Murrell, individually and as manager of Liberty Tax Service (Liberty Tax), challenges two of those emergency orders and the Statewide face covering requirements associated with them: (1) Order Authorizing the Re-Opening of Phase II Enterprises, COVID-19 Order No. 37 (June 6, 2020) (Order 37); and (2) Revised Order Requiring Face Coverings in Public Places, COVID-19 Order No. 55 (Nov. 2, 2020) (Order 55). As Order 69 revoked Orders 37 and 55 while the interlocutory appeal was pending, see Order 69 at 2, we now dismiss the case as moot.³

Background. 1. The emergency orders. Order 37, issued on June 6, 2020, required the director of the Department of Labor Standards (director) and the Commissioner of Public Health to issue COVID-19 workplace safety rules. Order 37 at 4. In addition, Order 37 gave the Department of Labor Standards, in consultation with the Department of Public Health (department), "general authority to promulgate directives, regulations, and guidance to implement and enforce" those safety rules. Id. at 5. A regulation promulgated under this authority required that "[a]ll enterprises that are authorized to open and are operating brick-and-mortar premises that are open to workers, customers, vendors or the public shall ... [r]equire face coverings or masks for all workers." 454 Code Mass. Regs. § 31.03(1)(d) (2020).

Order 55, which went into effect on November 6, 2020, required "all persons ... over the age of 5 years old ... to wear a mask or cloth face covering over their mouth and nose when in a public location." Order 55 at 2, 4. Order 55 granted enforcement power to the department, local boards of health, and authorized agents. Id. at 3. We refer to the mask requirements imposed by regulation under Order 37 and Order 55 together as the "Statewide mask mandates."

2. Murrell's conduct. Murrell operates Liberty Tax, a business providing tax preparation services in the city of Lynn (city). Murrell initially complied with the Statewide mask mandates, but after allegedly noticing that face masks were causing harm to people's health, Murrell adopted a no-mask policy at Liberty Tax. The policy required that customers and staff members not wear masks inside the premises. The Lynn police department received multiple complaints about Murrell's no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented observations of Murrell's practices at Liberty Tax. Members of the public also contacted the city's board of health (board) to notify it of Murrell's no-mask policy.

The city's health inspector (inspector) issued an initial citation to Murrell, dated February 2, 2021, warning her that Liberty Tax was in violation of the State's emergency orders. The inspector issued another five citations from February to April 2021, each fining Murrell $300 for Liberty Tax's continuing violation of the Statewide mask mandates, and a cease and desist order, dated March 17, 2021. Murrell unsuccessfully appealed the fines and the cease and desist order before the board, and sought judicial review in the District Court.

Murrell's no-mask policy drew the attention of the director as well as the Federal Occupational Safety and Health Administration (OSHA). The director issued a cease and desist order, dated February 23, 2021. Following a visit by an OSHA compliance officer on March 17, 2021, OSHA issued Murrell a citation and notice of penalty, including a $136,532 fine, dated April 8, 2021. Murrell appealed OSHA's citation and notice of penalty.⁴

About one month after issuing its cease and desist order, the city brought an action in Superior Court seeking a temporary restraining order and a permanent injunction to prevent Murrell from operating Liberty Tax until the Governor ended the state of emergency, and requesting a declaratory judgment stating that the city had authority to enforce the cease and desist order. Alongside its complaint, the city filed an emergency motion for a preliminary injunction. Murrell responded to the motion, claiming, among other things, that the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651 et seq., preempted the Governor's emergency orders and that only OSHA had the statutory authority and jurisdiction to seek an injunction against her. After a hearing, a judge of the Superior Court concluded that the emergency orders were not preempted and that it was in the public interest to grant a preliminary injunction authorizing the Lynn police to close Liberty Tax if Murrell failed to comply with the city's cease and desist order within twenty-four hours. The judge, however, stayed the injunction on May 10, 2021, and, pursuant to G. L. c. 231, § 111, and Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), reported the following two questions for decision by the Appeals Court: (1) "Did the court err in holding that Order ... 37 and Order ... 55 are not preempted by the OSH Act?"; and (2) "Did the court err in holding that the public interest required an order shutting down Liberty [Tax]?" We transferred the interlocutory appeal to this court on our own motion on October 20, 2021. On May 28, 2021, before the transfer, the Governor issued Order 69, which lifted most COVID-19 related orders and restrictions, including Order 37 and Order 55, the following day. See Order 69 at 2.

Discussion. Murrell argues on appeal that the now-rescinded Orders 37 and 55, and the directives and regulations associated them, were preempted by the OSH Act. See art. VI, cl. 2, of the United States Constitution. Murrell also argues that the judge erred in issuing the preliminary injunction because the city did not meet its burden of showing that it was in the public interest to do so. Because Orders 37 and 55 have been rescinded, the city no longer seeks to enjoin the operation of Liberty Tax, and neither party seeks any other form of relief. As a threshold matter, however, we must determine whether the issues are moot and, if they are, whether we ought to exercise our discretion to decide them anyway.

1. Mootness. "[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976). A party no longer has a personal stake in a case "where a court can order ‘no further effective relief.’ " Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 817, 120 N.E.3d 1163 (2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 858, 205 L.Ed.2d 456 (2020), quoting Lawyers’ Comm. for Civ. Rights & Economic Justice v. Court Adm'r of the Trial Court, 478 Mass. 1010, 1011, 85 N.E.3d 48 (2017). We have explained that "generally ... ‘[c]ourts decline to hear moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated.’ " Lockhart v. Attorney Gen., 390 Mass. 780, 782-783, 459 N.E.2d 813 (1984), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885 (1975).

Murrell argues that this case is not moot because there is still an ongoing dispute between the parties in the District Court regarding fines under the challenged emergency orders. That dispute, however, is a separate matter concerning Murrell's ongoing pecuniary obligations, separate from this interlocutory appeal. In this case, Murrell challenged the validity of the emergency orders in response to the city's seeking an injunction based on them. The city, on appeal, concedes that the injunction, by its terms, expired when the Governor rescinded the emergency orders. Because Murrell no longer is subject either to the emergency orders or to the injunction, a ruling from this court on the issues that she raises would offer no additional relief and would not alter either party's legal position. See Mullholland v. State Racing Comm'n, 295 Mass. 286, 289, 3 N.E.2d 773 (1936) ("When ... the situation is such that the relief sought is no longer available ... and a decision by the court will not be applicable to existing rights, ... [t]he questions ... have become moot"). All that is left is for us to invest valuable judicial resources in settling a "hypothetical dispute[ ]." Wolf, 367 Mass. at 298, 327 N.E.2d 885. Thus, the case is moot.

2. Discretion to decide the issues. Despite the "general rule" that we will not decide cases that have become moot, Norwood Hosp. v. Munoz, 409 Mass. 116, 121, 564 N.E.2d 1017 (1991), mootness differs from other doctrines of justiciability in that it is " ‘a factor...