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Law360 (September 9, 2020, 4:46 PM EDT) -- A First Circuit panel on Wednesday appeared reluctant to review a pair of challenges to Maine's COVID-19 response, suggesting in one appeal that the governor's decision to rescind a mandatory quarantine rule for out-of-state visitors may make that case moot.
During oral arguments in the suit over the two-week quarantine policy, U.S. Circuit Judge Bruce M. Selya pressed an attorney for two campgrounds on why the court should even hear the case given that Maine Gov. Janet T. Mills ended the requirement on June 9.
"Why isn't this appeal moot?" Judge Seyla asked Tyler Smith of Libby O'Brien Kingsley & Champion LLC at the outset of the hearing. "There isn't anything to issue a preliminary injunction against."
Tyler responded that the judges could bar the governor from reinstating her prior orders, a right Mills claimed wasn't out of the question if the virus makes a comeback in Maine. His clients — two campgrounds and three individuals — claim the quarantine amounts to "two weeks of house arrest" for people exercising their constitutional right to visit Maine.
The First Circuit also heard arguments Wednesday in a second case, brought by the Calvary Chapel of Bangor, challenging what it calls Mills' "unfettered executive orders" that restrict gatherings to 10 people. The church claims the governor placed "her thumb on houses of worship" in violation of the First Amendment.
The panel questioned whether the case should even be in front of the First Circuit. The lower court's decision, penned by U.S. District Judge Nancy Torresen, came in the form of a denial of a temporary restraining order, which usually cannot be appealed. The church argued that because the restraining order's denial has the practical effect of denying their requested preliminary injunction, it should be appealable.
"Why is further interlocutory relief unavailable?" Judge Selya asked. "Did Judge Torresen say anything to indicate that she was not open to ... making a ruling on the preliminary injunction motion? Did she say anything like that these rulings will carry through all pretrial proceedings?"
The church's attorney, Roger K. Gannam of Liberty Counsel, said the judge did not.
U.S. Circuit Judge David J. Barron later added, "I'm not sure we should be so quick to jump into this."
Representing the state in both cases, attorney Christopher Taub of the Maine Attorney General's Office argued that the campground case was in fact moot due to the order being rescinded.
But U.S. Circuit Judge Jeffrey R. Howard said that if the rescinded order makes the case moot, then "you effectively could never enjoin emergency actions of this type, no matter how much it violates rights," as long as the government limits them to a short period.
"To rule that way would be to say you have 60 days to do what you want," Judge Howard said.
The campgrounds are represented by Tyler Smith of Libby O'Brien Kingsley & Champion LLC.
Calvary Chapel is represented by Roger Gannam of Liberty Counsel.
The government is represented in both cases by Christopher C. Taub of the Maine Attorney General's Office.
The cases are Bayley's Campground Inc. et al. v. Janet T. Mills, case number 20-1559, and Calvary Chapel of Bangor v. Janet T. Mills, case number 20-1507, both in the U.S. Court of Appeals for the First Circuit.
--Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
