The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, the en banc U.S. Court of Appeals for the Sixth Circuit rejected an appeal filed by a private religious school and some school parents seeking an injunction against Michigan's statewide mask mandate. In Resurrection School v. Hertel, the court split 12-1-3, concluding that both the plaintiffs' interlocutory appeal and underlying appeal were both moot, as the state had already repealed the mandate.
Judge Kethledge wrote the opinion for the court. The opinion is short, direct, and clear. (Seven pages is quite short for an en banc opinion.) It points out that cases typically become moot if circumstances change during the pendency of litigation such that a favorable judgment would have no practical effect. There are potential exceptions to the mootness bar, such as when there are reasons to believe the controversy could repeat while also evading judicial review, but Judge Kethledge explained why none of these exceptions apply here.
Judge Kethledge's opinion was joined by Chief Judge Sutton and Judges Moore, Cole, Clay Gibbons, White, Stranch, Donald, Thapar, Larsen, Nalbandian, and Murphy. Judge Readler joined in part, and wrote a separate opinion concurring in part and dissenting in part. Judge Moore concurred, joined by Judges White, Stranch and Donald. Judge Bush dissented, joined by Judges Siler and Griffin.
Judge Moore's concurrence highlights some of the reasons the case had become moot:
Three facts convince me that this claim is moot. First, in the months since the State lifted the mask mandate, the Centers for Disease Control has approved a vaccine for school-age children. . . . Second, the State declined to reimpose a mask mandate during the spikes in COVID-19 cases caused by the Delta and Omicron variants. . . . Third, and relatedly, the State has now gone close to a year without reimposing a similar mask mandate. Therefore, I concur in the majority opinion.
Judge Readler agreed with the majority opinion that the preliminary injunction appeal was moot, but not the appeal seeking declaratory relief and a permanent injunction. On the latter question. Judge Readler noted his agreement with many of the arguments made by Judge Bush in dissent.
Judge Bush's dissent is the longest opinion in the case; indeed at 31 pages it is longer than all of the other opinions combined. In Judge Bush's view, the case is not moot. His opinion begins:
"Article III judges should not be in the business of declaring an end to the COVID-19 pandemic[.]" Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 572 (6th Cir. 2021) (Moore, J., dissenting). Rather, we should be willing to acknowledge "the thing about a once-in-a-century crisis"—that "it is hard to know how it will develop over the coming months and years, particularly when COVID-19 has defied expectations to this point[,] with new variants and seasonal surges threatening to undo hard-won progress." Id. at 573 (cleaned up). In this case, however, it appears that these principles will not carry the day. A court majority instead deems moot not merely plaintiffs' preliminary-injunction request, but their entire case. Thus extinguished is plaintiffs' opportunity to litigate their claims on the merits under a proper interpretation of the First Amendment. That unfortunate result rests, in my view, on a score of mistaken factual and legal premises. Our collective experience with two years of on-again-off-again masking mandates demonstrates that there is at least a reasonable possibility this dispute could recur. For that matter, the recent masking reimpositions in Ingham County itself show that this dispute could reasonably recur. . . .
And Judge Bush concludes:
I hope that I am eventually proven wrong. I would be quite pleased if COVID-19 were to permanently enter humanity's rear-view mirror. But the point is that I—just like the majority— have no basis upon which to proclaim that my hopes today will surely become realities tomorrow. Because I would hold that the present controversy is not moot, I respectfully dissent.