Munza v. Ivey

• Decision Date: 19 March 2021
• Docket Number: 1200003
• Citation: 334 So.3d 211
• Parties: Barry MUNZA, Larry Lewis, and Debbie Mathis v. Kay IVEY, in her official capacity as Governor of the State of Alabama ; Scott Harris, in his official capacity as State Health Officer of Alabama; and the Alabama State Board of Health
• Court: Alabama Supreme Court

334 So.3d 211

Barry MUNZA, Larry Lewis, and Debbie Mathis

v.Kay IVEY, in her official capacity as Governor of the State of Alabama ; Scott Harris, in his official capacity as State Health Officer of Alabama; and the Alabama State Board of Health

1200003

Supreme Court of Alabama.

March 19, 2021

Seth S. Ashmore, Scottsboro, for appellants.

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and James W. Davis and A. Reid Harris, asst. att'ys gen., for appellees.

Kelly Berry, Dennis Stapp, George Barry, Dewey Weaver, Alison Harris, and Allen Aleong, Harvest, pro se, amici curiae "named Alabama citizens," in support of the appellants.

BOLIN, Justice.

Barry Munza, Larry Lewis, and Debbie Mathis ("the plaintiffs") appeal from the Montgomery Circuit Court's order dismissing their complaint seeking certain injunctive relief and challenging a proclamation issued by Governor Kay Ivey requiring the use of facial coverings in certain circumstances, as outlined in an order issued by Dr. Scott Harris, the State Health officer, to slow the spread of COVID-19.

Facts and Procedural History

In December 2019, a new human coronavirus emerged. The virus, which causes the disease known as COVID-19, quickly spread around the world. On March 6, 2020, the State Board of Health designated COVID-19 as a disease with the potential to cause an epidemic, as a threat to the health and welfare of the public, or as otherwise having public-health importance, and it added COVID-19 to the list of diseases classified as immediate or extremely urgent that required the notification of a county health department or the State Department of Public Health within four hours of a presumptive diagnosis. The virus causing COVID-19 was first detected in Alabama on March 13, 2020. On that day, Governor Ivey issued a proclamation declaring a state of emergency for the State of Alabama because of the COVID-19 global pandemic. The state of emergency has been extended several times as the State continues to respond to the pandemic.

According to the United States Centers for Disease Control and Prevention ("the CDC"), the virus causing COVID-19 is thought to spread mainly between people who are in close contact with one another or through respiratory droplets produced when an infected person coughs

or sneezes. Notably, a person without symptoms of the virus can unknowingly still be infected and capable of spreading the virus to others. According to the CDC, using a mask or facial covering to cover one's mouth and nose can help reduce the spread of the virus; wearing a mask or facial covering serves two purposes: personal protection against inhalation of harmful pathogens and source control to prevent exposing others to infectious microbes that may be expelled during respiration. Again according to the CDC, wearing a mask or facial covering is particularly important in settings where social distancing -- physical separation from others by at least six feet -- cannot consistently be maintained.

On March 20, 2020, Dr. Harris, in his capacity as the State Health officer, issued an order, commonly referred to as "the Safer at Home order," "suspending certain public gatherings due to risk of infection by COVID-19." That order was issued as an emergency rule pursuant to §§ 41-22-5(b), 41-22-6(c)(3), 22-2-8, and 22-11A-1, Ala. Code 1975. Dr. Harris issued amended versions of the order on March 27, 2020, April 3, 2020, April 28, 2020, May 8, 2020, and May 21, 2020. The State Committee of Public Health, which has the authority to act on behalf of the State Board of Health, see § 22-2-6, Ala. Code 1975, was not in session when Dr. Harris issued the original order and the amendments thereto as emergency rules, but it later ratified the original order and the amendments thereto at its next meeting.

On June 30, 2020, Governor Ivey issued a proclamation that incorporated Dr. Harris's order, as most recently amended. As the proclamation explained, under the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, "[t]he State Health Officer's authority to adopt a COVID-19 related health order will arguably expire on July 15, 2020, which is 120 days after" Dr. Harris issued his original order as an emergency rule. The proclamation further stated:

"[T]he uncertainties of the COVID-19 pandemic will require COVID-19-related rulemaking to be done on an emergency, ad hoc basis for longer than the 120-day emergency period contemplated by the Administrative Procedure Act. The Governor's powers under the Emergency Management Act allows the flexibility to undertake such rulemaking for as long as a declared state public health emergency is in effect."

Accordingly, Governor Ivey attached Dr. Harris's order, as most recently amended, to her proclamation and "promulgate[d] that order as an order, rule, or regulation under the applicable provisions of the Emergency Management Act. See, e.g., Ala. Code [1975,] §§ 31-9-6(1) & 31-9-13." The proclamation stated that the "law-enforcing authorities of the state shall enforce that order as any other order, rule, or regulation promulgated by the Governor under [the Emergency Management] Act, and the penalty for violating it shall be a fine of not more than $500 or imprisonment in the county jail as set forth in [that] Act, see, e.g., [Ala. Code 1975,] § 31-9-22." Each subsequent amended order issued by Dr. Harris has been adopted and promulgated by Governor Ivey in a proclamation issued under the Alabama Emergency Management Act of 1955, § 31-9-1 et seq., Ala. Code 1975.

On July 15, 2020, Governor Ivey issued a proclamation ("the July 15 proclamation") adopting Dr. Harris's order, as amended effective July 15, 2020 ("the amended health order"), that, among other things, required a mask or facial covering to be worn in certain circumstances. The amended health order stated the following:

"2. Facial coverings for individuals: Effective July 16, 2020 at 5:00 P.M., each person shall wear a mask or other facial covering that covers his or [her] nostrils and mouth at all times when within six feet of a person from another household in any of the following places: an indoor space open to the general public, a vehicle operated by a transportation service, or an outdoor public space where ten or more people are gathered. But this facial-covering requirement is subject to the following exceptions[:]

"a. Exceptions for practical necessity. The facial-covering requirement does not apply to:

"i. Any person six years of age or younger;

"ii. Any person with a medical condition or disability that prevents him or her from wearing a facial covering;

"iii. Any person while consuming food or drink, or seated at a restaurant to eat or drink;

"iv. Any person who is obtaining a service (for example, a medical or dental procedure) that requires removal of the facial covering in order to perform the service; or

"v. Any person who is required to remove the facial covering to confirm his or her identity, such as for security of screening purposes.

"b. Exceptions for exercise. The facial-covering requirement does not apply to:

"i. Any person who is actively engaged in exercise in a gym or other athletic facility if he or she maintains six feet of separation from persons of another household;

"ii. Any person who is directly participating in athletic activities in compliance with paragraph 11 of this order; or

"iii. Any person who is in a swimming pool, lake, water attraction, or similar body of water, though wearing a facial covering or social distancing is strongly encouraged if safe and practicable.

"c. Exceptions for effective communication. The facial-covering requirement does not apply to:

"i. Any person who is seeking to communicate with another person where the ability to see the person's mouth is essential for communication (such as when the other person has a hearing impairment); or

"ii. Any person speaking for broadcast or to an audience if the person maintains six feet of separation from persons from another household.

"d. Exceptions to facilitate constitutionally protected activity. The facial-covering requirement does not apply to:

"i. Any person who is voting, though wearing a face covering is strongly encouraged; or

"ii. Any person who cannot wear a facial covering because he or she is actively providing or obtaining access to religious worship, though wearing a face covering is strongly encouraged.

"e. Exceptions for essential job functions. The facial-covering requirement does not apply to:

"i. Any first responder (including law enforcement officers, firefighters, or emergency medical personnel) if necessary to perform a public-safety function; or

"ii. Any person performing a job function if wearing a face covering is inconsistent with industry safety standards or a business's established safety protocols."

Governor Ivey has extended the facial-covering requirement several times since issuing the July 15 proclamation adopting the amended health order.

On July 24, 2020, the plaintiffs sued Governor Ivey and Dr. Harris, in their official capacities, and the Alabama State Board of Health ("the defendants"), seeking a temporary restraining order and injunctive relief regarding the July 15 proclamation adopting the amended health order mandating the use of facial coverings.

On July 26, 2020, the trial court entered an order denying the plaintiffs’ request for a temporary restraining order, stating that the plaintiffs had failed to demonstrate that they would be "irreparably harmed" without the issuance of a temporary restraining order. On July 27, 2020, the defendants moved the trial court to dismiss the plaintiffs’ action seeking injunctive relief on the basis that the trial court lacked subject-matter jurisdiction, see Rule 12(b)(1), Ala. R. Civ. P., and on the basis that the plaintiffs had failed state a claim upon which relief can be granted, see Rule 12(b)(6), Ala. R. Civ. P. In the alternative, the...