In re Covid-Related Restrictions On Religious Servs., C. A. 2021-1036-JTL

CourtCourt of Chancery of Delaware
Writing for the CourtLASTER, V.C.
Docket NumberC. A. 2021-1036-JTL
Decision Date22 November 2022


C. A. No. 2021-1036-JTL

Court of Chancery of Delaware

November 22, 2022

Submitted: October 12, 2022

Stephen J. Neuberger & Thomas S. Neuberger, THE NEUBERGER FIRM, P.A., Wilmington, Delaware; Scott D. Cousins & Scott D. Jones, COUSINS LAW LLC, Wilmington, Delaware; Thomas C. Crumplar, JACOBS & CRUMPLAR, P.A., Wilmington, Delaware; Martin D. Haverly, MARTIN D. HAVERLY, ATTORNEY AT LAW, Wilmington, Delaware; Attorneys for Plaintiffs.

Zi-Xiang Shen, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware; Brad D. Sorrels, Andrew D. Cordo, Daniyal M. Iqbal & Nora M. Crawford, WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; Attorneys for Defendant.



Two religious leaders have challenged restrictions that the Governor of the State of Delaware imposed on houses of worship during the COVID-19 pandemic (the "Challenged Restrictions"). The Challenged Restrictions evolved over time. Initially, they were quite strict, reflecting the profound threat that COVID-19 posed in early 2020. As the state of scientific knowledge progressed, and particularly after the arrival of vaccines, the Governor relaxed the Challenged Restrictions. The Governor lifted the Challenged Restrictions in June 2020, more than two years ago.

The plaintiffs contend that they suffered harm as a result of the Challenged Restrictions. They interpret the Delaware Constitution as imposing an absolute ban on any interference by a government official in the free exercise of religious worship. They accordingly maintain that the Challenged Restrictions violated their rights under the state constitution. The plaintiffs further assert that the Challenged Restrictions implicated their rights under the First and Fourteenth Amendments to the United States Constitution, triggering strict scrutiny. The plaintiffs argue that the Challenged Restrictions cannot survive strict scrutiny and accordingly violated their rights under the federal constitution. As a remedy, the plaintiffs seek (1) a declaration that certain of the Challenged Restrictions were unconstitutional, (2) a permanent injunction prohibiting the Governor from implementing similar restrictions in the future, and (3) nominal damages of one dollar from the Governor in his individual capacity, plus undefined compensatory damages.

The Governor has moved to dismiss the case on many grounds. For starters, he claims that this court lacks subject matter jurisdiction over the plaintiffs' claims. This decision addresses that issue.


The Court of Chancery is a court of limited jurisdiction. It can hear claims that arise in equity. It can hear claims that warrant equitable relief. And it can exercise jurisdiction conferred by statute.

The requests for declaratory judgments and awards of nominal and compensatory damages are insufficient to invoke this court's jurisdiction. The Superior Court of the State of Delaware is plainly capable of addressing the underlying legal issues in the case and providing those forms of relief. The question is whether there is something about this case that warrants the involvement of equity.

The plaintiffs' sole jurisdictional hook is their request for a permanent injunction. The Governor argues that under Delaware's test for a permanent injunction, the plaintiffs must show that they face imminent irreparable harm. The Governor argues that it is not reasonably conceivable that the plaintiffs face a threat of imminent irreparable harm given that he lifted the Challenged Restrictions more than two years ago, has no intention of re-imposing them, and has entered into a settlement agreement that resolved a federal lawsuit brought by another religious leader in which he agreed to limitations on his ability to impose restrictions on houses of worship.

The principal flaw in this argument lies in how Delaware cases have framed the test for a permanent injunction. A more searching review of precedent demonstrates that to obtain a permanent injunction, a plaintiff does not have to establish a threat of imminent irreparable harm. A plaintiff needs to prevail on the merits and show that remedies at law would be inadequate. Proving a threat of irreparable harm absent injunctive relief is one way to show that remedies at law would be inadequate. It is not the only way.


To the extent that a plaintiff relies on a threat of irreparable harm to support the issuance of a permanent injunction, the threat need not be imminent. The Delaware cases that impose that requirement have ported it over from the tests that a plaintiff must meet when seeking interim forms of injunctive relief, such as a temporary restraining order or a preliminary injunction. In those settings, the plaintiff asks the court to act before a final adjudication on the merits. The plaintiff must therefore face a threat of harm that is both (i) irreparable, in the sense that it cannot be remedied after a final adjudication on the merits, and (ii) imminent, in the sense that it will transpire before the court has a further opportunity to act. When a court determines whether to issue a permanent injunction following a final adjudication, the court is addressing the matter definitively. There is no longer any need for an imminent threat that will occur before a later stage in the case.

In seeking to defeat equitable jurisdiction, the Governor therefore cannot rely on cases which have stated that a plaintiff must establish a threat of imminent, irreparable harm to obtain a permanent injunction. But the basic thrust of the Governor's argument remains persuasive. It simply needs to be analyzed within a proper framework.

Courts of equity are rightly reluctant to allow a plaintiff to establish jurisdiction by tacking on a request for a permanent injunction to a suit that a court of law otherwise could hear. That reluctance is particularly warranted when the defendant is not currently engaging in the act that the plaintiff seeks to enjoin. The level of reluctance increases when, as here, the risk that the defendant will act is not so great as to warrant an application for interim relief.


Consequently, when a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction's issuance. Under the reasonable-apprehension test, a plaintiff's subjective fears are not sufficient. There must be objectively good reasons to think that a permanent injunction will be warranted.

The plaintiffs have not pled facts that make it reasonably conceivable that the Governor will re-impose the Challenged Restrictions. During the past two years, as COVID-19 has mutated and surged, the Governor has not imposed limitations comparable to the Challenged Restrictions. Instead, the Governor has entered into a settlement with another religious leader in which he agreed not to impose restrictions that treated houses of worship differently and committed not to impose certain types of restrictions. To be sure, the plaintiffs lack standing to enforce that settlement, but that is not the issue. The settlement provides objective evidence that the Governor does not intend to re-impose the Challenged Restrictions. While it is theoretically possible that the Governor could impose future restrictions that the plaintiffs would find objectionable, that is not the test. At present, it is not reasonably conceivable that the plaintiffs have a reasonable apprehension that the Challenged Restrictions will be reimposed.

In this setting, the issuance of a declaratory judgment, with or without an attendant award of damages (nominal or otherwise), will be sufficient to resolve the plaintiffs' claims. Nothing more is required to protect the plaintiffs' interests. To the extent the plaintiffs succeed in obtaining the declaratory judgment they seek, the plaintiffs will be


well positioned to obtain equitable relief in the future. If they obtain that declaratory judgment and the Governor acts contrary to it, then this court can rely on the declaratory judgment as a basis to issue injunctive relief.

What the plaintiffs have not shown at this point is any basis for a prophylactic permanent injunction. The case is therefore dismissed for lack of subject matter jurisdiction. Pursuant to 10 Del. C. § 1902, the plaintiffs have sixty days to transfer this action to the Superior Court.


The facts are drawn from the complaint, the documents incorporated therein, and public sources subject to judicial notice. At this stage of the proceedings, the allegations of the complaint are accepted as true, and the plaintiffs are entitled to all reasonable inferences that the allegations support.

A. The State Of Emergency

On March 11, 2020, the World Health Organization declared that the COVID-19 outbreak constituted a global pandemic. Two days later, on March 13, the Governor issued a "Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat." Dkt. 32 Ex. 1 (the "Emergency Declaration" or "Decl."). The Emergency Declaration stated that it would remain in effect "until terminated as provided under state law." Id. at 1.

The Governor issued the Emergency Declaration in accordance with powers granted to him under Title 20, Chapter 31 of the Delaware Code (the "Emergency Management Chapter"). The Emergency Management Chapter provides that "the Governor may issue,


amend and rescind all necessary executive orders, emergency orders, proclamations and regulations, which shall have the force and effect of law." 20 Del. C. § 3115(b). Section 3115(c) grants the Governor the power to proclaim a state of emergency. It provides:

In addition to the powers conferred upon the Governor by this chapter, a state of emergency may be

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