CT Freedom Alliance, LLC v. Dep't of Educ.

• Decision Date: 12 January 2023
• Docket Number: SC 20627
• Citation: 346 Conn. 1,287 A.3d 557
• Parties: CT FREEDOM ALLIANCE, LLC, et al. v. DEPARTMENT OF EDUCATION et al.
• Court: Connecticut Supreme Court

346 Conn. 1

287 A.3d 557

CT FREEDOM ALLIANCE, LLC, et al.

v.DEPARTMENT OF EDUCATION et al.

SC 20627

Supreme Court of Connecticut.

Argued September 7, 2022

Officially Released January 12, 2023^*

Norman A. Pattis, Bethany, with whom, on the brief, was Cameron L. Atkinson, for the appellants (plaintiffs).

Timothy J. Holzman, assistant attorney general, with whom were Darren P. Cunningham, assistant attorney general, and, on the brief, William Tong, attorney general, and Clare Kindall, former solicitor general, for the appellees (defendants).

Robinson, C. J., and D'Auria, Ecker, Alexander and Keller, Js.

D'AURIA, J.

The case before us, when commenced, involved one of the great public controversies of the day. For nearly three years, our state, our nation, and our world have experienced a global pandemic unrivaled in severity for more than one century. Among other things, this pandemic has been marked by the wearing of masks over our noses and mouths—both voluntarily and by mandate—aimed at abating the transmission of the highly virulent and infectious disease known as COVID-19 among the population. Both the effectiveness of masking and the justification for and legality of mandating masking have been the topics of widespread and often vehement public debate, dividing citizens, families, and elected officials. Like most public controversies, this one has made its way into the courts.

Not surprisingly, feelings have run most passionately when the controversy has involved children. As has been the case elsewhere in the nation, impassioned debate broke out throughout our state regarding whether schoolchildren should have to wear masks in school. In June, 2020, the defendants, the state Department of Education (department), then state Commissioner of Education Miguel A. Cardona, and Governor Ned Lamont, undertook to mandate that our state's schoolchildren wear masks while in school. It is the defendants’ authority to implement that mandate, and to continue it for nearly two years, that forms the basis of the plaintiffs’ present action, and it is the relatively recent repeal of that mandate that demands that we determine whether we still have jurisdiction over this appeal. We conclude that this case is moot and therefore dismiss the appeal for lack of jurisdiction.

I

The record contains the following relevant facts and procedural history, including background that we recently detailed at length in Casey v. Lamont , 338 Conn. 479, 258 A.3d 647 (2021). Like the present action, Casey involved a challenge to the governor's authority under General Statutes § 28-9.¹ "On March 10, 2020, [i]n response to the global pandemic of [COVID-19], Governor Lamont declare[d] a public health emergency and civil preparedness emergency throughout the [s]tate, pursuant to [ General Statutes §§] 19a-131a and 28-9 .... Governor Lamont has renewed the declaration of both emergencies" several times. (Internal quotation marks omitted.) Id., at 483–84, 258 A.3d 647. In his original declaration of March 10, 2020, Governor Lamont (governor) announced that he would issue executive orders "to protect public health and safety, including suspension or modification of specific statutes ... as [he] determine[d] to be necessary." Although each order was limited to a six month period, as required by § 28-9 (b) (1), the governor renewed the declarations of both emergencies multiple times. See Casey v. Lamont , supra, at 483–84, 258 A.3d 647.

Days after declaring the public health emergency in March, 2020, the governor issued an executive order temporarily cancelling all in-person public school classes. See Executive Order No. 7C, § 1 (March 15, 2020). In May, 2020, the governor cancelled in-person classes for the remainder of the 2019–2020 school year. See Executive Order No. 7II, § 1 (May 5, 2020). In June, 2020, the department published a document titled "Plan for Reimagining CT Classrooms for Continuous Learning," which was subsequently updated in September, 2020, and retitled "Adapt, Advance, Achieve: Connecticut's Plan to Learn and Grow Together" (AAA), which provided guidance to school districts as they planned to reopen schools in the fall of 2020. The AAA contained certain requirements that were defined as "elements that the Office of the Governor, the [department], and/ or the [state Department of Public Health] have identified as necessary for [school districts] to complete or comply with in order to open schools successfully [that] fall," including that all school districts adopt policies requiring students and staff to wear a mask or other form of face covering while on school property. The AAA provided limited exceptions to this mandate.²

In September, 2020, the governor issued Executive Order No. 9, which granted the Commissioner of Education (commissioner) authority to "issue binding guidance, rules, or orders for operation of schools ... deem[ed] necessary to respond to the COVID-19 pandemic .... Such rules or binding guidance may include rules related to the required use of masks or face-coverings in school buildings ...." Executive Order No. 9, § 1 (September 4, 2020). The order excluded the commissioner's "binding guidance" from the definition of "regulation" for purposes of General Statutes § 4-166 (16) of the Uniform Administrative Procedure Act (UAPA). This exemption allowed the defendants to issue and enforce binding guidance without first providing notice to the public and an opportunity to be heard. The governor directed that this executive order would apply retroactively to the previously issued AAA and any addendums or amendments. After Executive Order No. 9 was issued in September, 2020, the governor extended it several times. During the pendency of this appeal, the department updated the AAA for the 2021–2022 school year, retaining the mask requirement.

Less than one month before Executive Order No. 9 was issued, the plaintiffs³ filed this lawsuit, challenging the school mask mandate in the AAA and seeking declaratory and injunctive relief.⁴ Subsequently, the parties filed motions for summary judgment.⁵ The trial court granted the defendants’ motion for summary judgment as to the third, fourth, fifth, and sixth counts of the plaintiffs’ complaint. The trial court reserved decision on the first two counts pending this court's decision in Casey v. Lamont , supra, 338 Conn. 479, 258 A.3d 647.

We subsequently released our decision in Casey . The plaintiffs in that case had challenged the legality of several executive orders that the governor issued during the beginning of the COVID-19 pandemic, "limit[ing] various commercial activities at bars and restaurants throughout the state." Id., at 483, 258 A.3d 647. The plaintiffs argued that these executive orders exceeded the governor's statutory and constitutional authority. Id., at 486, 258 A.3d 647. The trial court rejected the plaintiffs’ arguments, and this court affirmed the trial court's judgment, holding, first, that, as a matter of statutory interpretation, the COVID-19 pandemic constituted a "serious disaster" under § 28-9 (a), authorizing the governor to declare a civil preparedness emergency pursuant to that statute. (Internal quotation marks omitted.) Id., at 498, 258 A.3d 647. Second, we held that, "following the proclamation of a civil preparedness emergency pursuant to § 28-9 (a), subsection (b) (1) [as well as subsection (b) (7)] empowers the governor to modify or suspend any statute, regulation or requirement that conflicts with the efficient and expeditious execution of civil preparedness functions or the protection of the public health" and that "[a]ll of the challenged executive orders fall squarely within either or both of these provisions." Id., at 499, 258 A.3d 647.

As to the plaintiffs’ constitutional claim, we held in Casey that "the plaintiffs [had not met] their heavy burden of establishing that [ § 28-9 (b) (1) violated] the separation of powers provision of article second of the Connecticut constitution on the [ground] that it impermissibly delegates legislative authority to the governor." Id., at 505, 258 A.3d 647. We reasoned that, in enacting § 28-9, the General Assembly had established a clear policy for the governor to follow in the case of a serious disaster, as well as clear standards limiting the governor's authority to act. See id., at 507–508, 258 A.3d 647. As such, we held that, although § 28-9 "affords the governor considerable latitude ... that latitude is neither standardless nor limitless." (Citation omitted.) Id., at 517, 258 A.3d 647.⁶

Following the release of Casey , the trial court granted the defendants’ summary judgment motion on the remaining counts of the plaintiffs’ complaint, concluding that "[t]here can be little doubt that, between the Casey [decision] and the General Assembly's action ... [intelligible] principles and oversight exist and have been strengthened. This means [the trial] court must deem the governor's actions within his rights under the Connecticut constitution." Although the trial court did not specify why it granted the motion for summary judgment on the count of the complaint alleging that the governor's declarations were in violation of the UAPA, the court had stated in its previous decision that that claim would "[have] no foundation" if this court were to uphold the legality of Executive Order No. 9 in Casey . With its latter ruling, the trial court had therefore rejected each of the plaintiffs’ arguments. The plaintiffs then appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

II

The plaintiffs’ lawsuit challenges the legality of the defendants’ school mask mandate and seeks declaratory and injunctive relief. The plaintiffs have raised four claims on appeal. The first three are procedural in nature, while the last claim challenges the substance of the mask mandate itself, alleging that it harms schoolchildren. The plaintiffs...