Roman Catholic Diocese Part IV: Governor Cuomo’s Orders are Capable of Repetition, and Will Not Escape Review

This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause.

Earlier this week, I described Governor Cuomo’s microcluster regime as a whac-a-mole game. Whenever any responsive pleading is due, the City magically finds that the challenged restrictions can be lifted. I suggested that the Court should rely on the capable-of-repetition-yet-evading-review standard.

Diocese does not adopt this standard expressly, but it does hint at it.

First, the Court says this controversy is not moot.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particularareas without prior notice.

The Court does not use the phrase “capable of repetition yet evading review,” but the first cited case, FEC v. WRTL, does use that phrase.

As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S. Ct. 2652, 2662, 168 L. Ed. 2d 329 (2007)

The other cited case, Friends of the Earth, relies on the related voluntary cessation doctrine.

In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708, 145 L. Ed. 2d 610 (2000)

Going forward, district courts now have a green light to use “capable of repetition yet evading review” and “voluntary cessation” where the Government modifies the COVID-19 regime at the eleventh hour.

Second, the Court explains why the Governor’s last-minute modification does not end the case:

If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief canbe obtained. At most Catholic churches, Mass is celebrated daily, and “Orthodox Jews pray in [Agudath Israel’s] synagogues every day.” Application in No. 20A90, at 4. Moreover, if reclassification occurs late in a week, as has happened in the past, there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes. Thirteen days have gone by since the Diocese filed its application, and Agudath Israel’s application was filed over a week ago. While we could presumably act more swiftly in the future, there is no guarantee that we could provide relief before another weekend passes. The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification.

I’ve litigated this issue now for several weeks. I can attest how frustrating it is when the government changes the policy, but can reimpose the restrictions at any point.

Third, Justice Gorsuch, who came to brawl, was far more cynical. He suggests that New York was trying to frustrate the Court’s jurisdiction. He wrote:

It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to acton their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.

Gorsuch observed (as I wrote in my post) that all of New York City may soon be placed under an orange regime.

Both Governor Cuomo and Mayor de Blasio have “indicated it’s only a matter of time before [all] five boroughs” of New York City are flipped from yellow to orange.

J. Skolnik, D. Goldiner, & D. Slattery, Staten Island Goes ‘Orange’ As Cuomo Urges Coronavirus ‘Reality Check’ Ahead of Thanksgiving, N. Y. Daily News (Nov. 23, 2020), https://www.nydailynews.com/coronavirus/ny-coronaviruscuomo-thanksgiving-20201123-yyhxfo3kzbdinbfbsqos3tvrk u-story-html. On anyone’s account, then, it seems inevitable this dispute will require the Court’s attention.

Now that the Court has ruled, I suspect New York City will be put back in code orange.

Fourth, Chief Justice Roberts would not have decided this case because, at present, the applicants are not subject to Code Red or Code Orange restrictions. He wrote:

I would not grant injunctive relief under the present circumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, theGovernor revised the designations of the affected areas.None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.

Thus, there is no need to decide these issues:

It is not necessary, however, for us to rule on thatserious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things nowstand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.” An order telling the Governor not to do what he’s not doing fails to meet that stringent standard.

That last sentence may be quoted in a California v. Texas opinion. Roberts can write.

Justice Breyer, also in dissent, argued there was no need to intervene.

Instead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future.But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if necessary, could then decide the matter in a day or two, perhap seven in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (and prior to the Court of Appeals’ consideration of the matter)when there is no legal or practical need for it to do so? I have found no convincing answer to that question.

I am skeptical the Court can act in a manner of hours. Days perhaps. But not hours. This is not like a death penalty case.

Justice Kavanaugh responded to the Chief Justice with respect to Court’s injunctive relief:

I part ways with THE CHIEF JUSTICE on a narrow procedural point regarding the timing of the injunctions. THE CHIEF JUSTICE would not issue injunctions at this time. As he notes, the State made a change in designations a few days ago, and now none of the churches and synagogues who are applicants in these cases are located in red or orange zones. As I understand it, THE CHIEF JUSTICE would not issue an injunction unless and until a house of worship applies for an injunction and is still in a red or orange zone on the day that the injunction is finally issued. But the State has not withdrawn or amended the relevant Executive Order. And the State does not suggest that the applicants lack standing to challenge the red-zone and orange-zone caps imposed by the Executive Order, or that these cases are moot or not ripe. In other words, the State does not deny that the applicants face an imminent injury today. In particular, the State does not deny that some houses of worship, including the applicants here, are located in areas that likely will be classified as red or orange zones in the very near future. I therefore see no jurisdictional or prudential barriers to issuing the injunctions now.

There also is no good reason to delay issuance of the injunctions, as I see it. If no houses of worship end up in red or orange zones, then the Court’s injunctions today will impose no harm on the State and have no effect on the State’s response to COVID–19. And if houses of worship end up in red or orange zones, as is likely, then today’s injunctions will ensure that religious organizations are not subjected to the unconstitutional 10-person and 25-person caps. Moreover, issuing the injunctions now rather than a few days from now not only will ensure that the applicants’ constitutional rights are protected, but also will provide some needed clarity for the State and religious organizations.

The last sentence is key. Now, New York will have to come up with a more narrowly tailored scheme if the city is placed back in Code Orange. The Houses of Worship will not have carte blanche to do as they wish.