Thompson v. Health Dep't of Nw. Mich.
| Docket Number | 360864 |
| Decision Date | 29 June 2023 |
| Parties | LET THEM BREATHE, JENNIFER BRUNN THOMPSON, SARAH KITCHEN, RACHEL DAVIS, and DANIELLE DIANE DENISON, Plaintiffs-Appellants, v. HEALTH DEPARTMENT OF NORTHWEST MICHIGAN and GAYLORD COMMUNITY SCHOOLS, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Otsego Circuit Court LC No. 21-018749-CZ
Before: Gleicher, C.J., and Rick and Maldonado, JJ.
Plaintiffs Let Them Breathe (LTB), are an unincorporated association of parents of school-age children in Gaylord, Michigan, and four individual parents of children who attend schools in the city. They appeal as of right the trial court's order dismissing the present action as moot. LTB brought suit against defendants, the Health Department of Northwest Michigan (the Health Department) and Gaylord Community Schools (GCS), after the Health Department implemented a policy mandating that children attending public schools in four Northern Michigan counties wear masks to help stop the spread of COVID-19. Before the trial court ruled on the merits of several pending motions in the case, the Health Department rescinded the mask mandate. We affirm the trial court's order dismissing on the basis of mootness.
On August 27, 2021, the Health Department issued an order requiring the wearing of face masks in schools in Antrim Charlevoix, Emmett, and Otsego County. GCS implemented a mask mandate per the Health Department's policy, and suspended several students for refusing to wear masks. In November 2021, plaintiffs filed a complaint against the Health Department and GCS, challenging the Health Department's authority to issue the order and GCS's authority to suspend students for violating it.[1] Plaintiffs also filed several motions for immediate declaratory relief in January and February 2022. Before the trial court ruled on these motions, the Health Department rescinded the order, effective February 17, 2022, because of "improving conditions surrounding the pandemic." On its own motion, the trial court issued an order adjourning plaintiffs' motions for declaratory relief and asked the parties to submit briefs addressing whether plaintiffs' claims were moot in light of the Health Department's rescission of the order at issue. After a hearing, the trial court declared the case moot, declined to rule on any pending motions, and dismissed the case. This appeal followed.
Courts have a duty to consider and decide only actual cases and controversies. Barrow v Detroit Election Comm, 305 Mich.App. 649, 659; 854 N.W.2d 489 (2014). Thus, courts typically "will not entertain moot issues or decide moot cases." TM v MZ, 501 Mich. 312, 317; 916 N.W.2d 473 (2018) (quotation marks and citation omitted). A matter is moot when Barrow, 305 Mich.App. at 659 (quotation marks and citation omitted). "Issues involving mootness are questions of law that are reviewed de novo." Adams v Parole Board, 340 Mich.App. 251, 259; 985 N.W.2d 881 (2022).
Even so, a W T Grant Co, 345 U.S. at 633 (quotation marks and citation omitted).
The Health Department rescinded the masking requirement for schools while this matter was pending in the trial court. Since there is no meaningful relief that we could grant, and a judgment of this Court would have no practical effect on the existing controversy, plaintiffs' challenge to the mask mandate is moot. See Flynn v Ottawa Co Dep't of Pub Health,__Mich App__,__;__N.W.2d__(2022) (Docket No. 359774); slip op at 4. However, plaintiffs' claim that the merits of the case must still be reviewed under the voluntary cessation doctrine, as well as because the issues are likely to recur, yet evade judicial review. Accordingly, we will address whether an exception to the general rule regarding mootness applies in this case. In so doing, we ultimately conclude this case is moot and the matter must be dismissed.
Plaintiffs first argue that the voluntary cessation doctrine applies because voluntary cessation of conduct cannot moot a case, and because there is no guarantee that the Health Department will not institute a new mask mandate in the future. We disagree.
Plaintiffs contend that the Health Department has not conceded that it lacked the authority to issue the mask mandate at issue. Nor, does it concede that its vigorous defense of its actions suggests that another mask mandate could be enacted later. At first blush, these circumstances do lend credence to the argument that the Health Department's voluntary cessation of the mask mandate should not render plaintiffs' claims moot. However, as noted supra, even if the voluntary cessation doctrine otherwise applied, a case may still be moot "if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated." W T Grant Co, 345 U.S. at 633 (quotation marks and citation omitted). On appeal, the Health Department points out that the rescission of the mask mandate went into effect on February 17, 2022, around the same time that other counties in Michigan rescinded their mask mandates, and in accordance with updated data on the number of COVID-19 cases in the state. The Health Department also notes that it has not enacted another mask mandate since rescinding the mandate at issue in this case, nor has it expressed any intent to do so. At this juncture, plaintiffs' concern that the Health Department will choose to enact another mask mandate in the future is little more than speculation. It is possible, to be sure, but there are simply too many variables involved to conclude that another mask mandate is anything more than just that-a possibility.[2] Additionally, there is no evidence that the Health Department sought to "evad[e] judicial review by ceasing challenged conduct to avoid judicial scrutiny," Micheli v Mich. Auto Ins Placement Facility, 340 Mich.App. 360, 380; 986 N.W.2d 451 (2022) (Ronayne Krause, J., concurring), as plaintiffs suggest. When the Health Department announced the rescission of the mask mandate, it stated that the mandate was being lifted "[d]ue to improving conditions surrounding the pandemic," and cited data and statistics from local and state agencies supporting the decision. Nothing in the Health Department's actions suggests that it merely rescinded the mask mandate to avoid review by this Court. Accordingly, we conclude that the voluntary cessation doctrine does not apply to plaintiffs' otherwise moot claims.
Plaintiffs also argue that the mask mandate at issue here is likely to recur, yet evade judicial review. We again disagree.
"An issue is likely to evade judicial review if the time frames of the case make it unlikely that appellate review can be obtained before ...
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