CT Freedom Alliance, LLC v. Dept. of Education ( 2023 )

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CT FREEDOM ALLIANCE, LLC, ET AL.
v. DEPARTMENT OF EDUCATION
ET AL.
(SC 20627)
Robinson, C. J., and D’Auria, Ecker, Alexander and Keller, Js.
Syllabus
The plaintiffs sought relief in connection with a mandate issued by the
defendants, the governor of the state of Connecticut, the Department
of Education, and the education commissioner, that required children
to wear face masks in school during the COVID-19 pandemic. In response
to the pandemic, the governor declared a public health and civil pre-
paredness emergency in March, 2020, and, pursuant to statute (§§ 19a-
131a and 28-9), thereafter issued certain executive orders to protect
public health and safety, including an order cancelling all in-person
public school classes for the remainder of the school year. The depart-
ment later issued guidance to school districts on how to safely reopen
schools the following school year, which directed school districts to
adopt policies requiring that students and staff wear masks or other
forms of face coverings when at school. The governor then issued an
executive order authorizing the commissioner to issue ‘‘binding guid-
ance’’ for the operation of schools, deemed necessary to respond to the
COVID-19 pandemic. That order, which was extended several times,
applied retroactively and provided that the commissioner’s binding guid-
ance, including the previously issued guidance regarding face masks,
was not a regulation for purposes of the Uniform Administrative Proce-
dure Act (UAPA) (§ 4-166 et seq.). The defendants thus were permitted
to issue and enforce the binding guidance without first providing notice
to the public and an opportunity to be heard. The plaintiffs challenged
the legality of the mask mandate and sought declaratory and injunctive
relief, claiming, inter alia, that the mandate was improperly issued and
extended, and that it violated the rights of schoolchildren to a free
public education under article eighth of the Connecticut constitution.
The trial court granted the defendants’ motion for summary judgment
and rendered judgment thereon, from which the plaintiffs appealed.
While the appeal was pending, the department repealed the school mask
mandate, and the defendants thereafter moved to dismiss the appeal as
moot. Although the plaintiffs did not contend that a live controversy
existed, they opposed the motion to dismiss on the ground that their
claims were reviewable under either the capable of repetition, yet evad-
ing review exception or the voluntary cessation exception to the moot-
ness doctrine.
Held that neither the capable of repetition, yet evading review exception
nor the voluntary cessation exception to the mootness doctrine applied
in the present case, and, because this court agreed that it could no longer
provide the plaintiffs with any practical relief, it dismissed the plaintiffs’
appeal for lack of subject matter jurisdiction:
1. The plaintiffs failed to establish that their claims were capable of repeti-
tion, yet evading review, as there was no reasonable likelihood that the
questions presented in this appeal would arise again in the future:
In determining whether the questions presented in this appeal would
recur, the appropriate inquiry was not whether the mask mandate itself
was likely to be reinstated, which was relevant only to the plaintiffs’
final substantive claim that the mask mandate violates the rights of
schoolchildren to a free public education, but whether there was a reason-
able likelihood that the particular governmental actions the plaintiffs
challenged would arise in a similar manner in the future, and that likeli-
hood did not exist with respect to the plaintiff’s three procedural claims
relating to the issuance and extension of the school mask mandate.
With respect to the plaintiffs’ claim that the department violated the
UAPA by issuing the mask mandate through its guidance, given the
unique nature of the COVID-19 pandemic and the defendants’ newly
acquired knowledge from dealing with it, it was unlikely that, and purely
speculative whether, the defendants would address future civil prepared-
ness emergencies in the same way, that is, by issuing guidance that is
retroactively deemed to be binding and exempt from the definition of
‘‘regulation’’ in the UAPA via an executive order.
With respect to the plaintiff’s claim that the governor unlawfully extended
the executive order multiple times, it was speculative whether there
would be another pandemic of the same extended nature or that a
governor would employ the same procedure in a future emergency,
especially when the legislature had taken steps to validate the governor’s
issuance and extension of executive orders under § 28-9 and had gained
the knowledge and experience to determine whether to validate or nullify
such orders if similar circumstances were to arise in the future.
The plaintiffs’ claim that the legislature unconstitutionally delegated its
legislative power in violation of the separation of powers provision of
the Connecticut constitution by passing multiple special acts that ratified
and allowed the governor to extend his emergency declarations was
also based on speculation that a pandemic of the same magnitude and
duration would occur in the future, and it was reasonable to assume
that, because the majority of civil preparedness emergencies previously
declared in Connecticut had lasted only a few weeks or months, the
legislature would not likely be confronted with a similar emergency in
which the governor would seek to extend his emergency powers in a
manner beyond what this court deemed permissible in Casey v. Lamont
(338 Conn. 479).
With respect to the plaintiffs’ claim that the mask mandate violated the
rights of schoolchildren to a free public education, because the mask
mandate was repealed during the pendency of the plaintiffs’ appeal
and the defendants have not indicated that they intend to reinstate the
mandate, it was speculative whether the defendants would issue another
school mask mandate, and concluding that they would do so would
require this court to engage in scientific and political speculation as to
how the current pandemic would proceed and how the legislative and
executive branches would respond.
2. The voluntary cessation exception did not apply to overcome the mootness
of the controversy in the present case:
Although the voluntary cessation of a challenged practice does not
deprive a court of the power to determine the legality of the practice,
it is appropriate to afford some deference to governmental actors who
have voluntarily ceased the allegedly unlawful conduct and to their
representations that certain conduct has been discontinued.
This court had no reason not to believe the defendants’ representations
that they had repealed the mask mandate because the circumstances of
the COVID-19 pandemic had changed and that they had no intention to
reinstate the mandate, the plaintiffs did not suggest that the defendants’
motivation in repealing the mask mandate was to avoid an adverse ruling,
and there was no evidence that the defendants repealed the mandate in
response to litigation or with the intent to reinstate the mandate after
a dismissal of the plaintiffs’ appeal.
Argued September 7, 2022—officially released January 12, 2023*
Procedural History
Action for, inter alia, a judgment declaring the legality
of certain school mask requirements that the defen-
dants promulgated and issued during their response to
the COVID-19 pandemic, brought to the Superior Court
in the judicial district of Hartford, where Governor Ned
Lamont was added as a defendant; thereafter, the court,
Moukawsher, J., granted the defendants’ motion for
summary judgment and rendered judgment thereon,
from which the plaintiffs appealed. Appeal dismissed.
Norman A. Pattis, with whom, on the brief, was
Cameron L. Atkinson, for the appellants (plaintiffs).
Timothy J. Holzman, assistant attorney general, with
whom were Darren P. Cunningham, assistant attorney
general, and, on the brief, William Tong, attorney gen-
eral, and Clare Kindall, former solicitor general, for
the appellees (defendants).
Opinion
D’AURIA, J. The case before us, when commenced,
involved one of the great public controversies of the
day. For nearly three years, our state, our nation, and
our world have experienced a global pandemic unri-
valed in severity for more than one century. Among
other things, this pandemic has been marked by the
wearing of masks over our noses and mouths—both
voluntarily and by mandate—aimed at abating the trans-
mission of the highly virulent and infectious disease
known as COVID-19 among the population. Both the
effectiveness of masking and the justification for and
legality of mandating masking have been the topics of
widespread and often vehement public debate, dividing
citizens, families, and elected officials. Like most public
controversies, this one has made its way into the courts.
Not surprisingly, feelings have run most passionately
when the controversy has involved children. As has
been the case elsewhere in the nation, impassioned
debate broke out throughout our state regarding
whether schoolchildren should have to wear masks in
school. In June, 2020, the defendants, the state Depart-
ment of Education (department), then state Commis-
sioner of Education Miguel A. Cardona, and Governor
Ned Lamont, undertook to mandate that our state’s
schoolchildren wear masks while in school. It is the
defendants’ authority to implement that mandate, and
to continue it for nearly two years, that forms the basis
of the plaintiffs’ present action, and it is the relatively
recent repeal of that mandate that demands that we
determine whether we still have jurisdiction over this
appeal. We conclude that this case is moot and therefore
dismiss the appeal for lack of jurisdiction.
I
The record contains the following relevant facts and
procedural history, including background that we
recently detailed at length in Casey v. Lamont, 338
Conn. 479, 258 A.3d 647 (2021). Like the present action,
Casey involved a challenge to the governor’s authority
under General Statutes § 28-9.1 ‘‘On March 10, 2020,
[i]n response to the global pandemic of [COVID-19],
Governor Lamont declare[d] a public health emergency
and civil preparedness emergency throughout the
[s]tate, pursuant to [General Statutes §§] 19a-131a and
28-9 . . . . Governor Lamont has renewed the declara-
tion of both emergencies’’ several times. (Internal quo-
tation marks omitted.) Id., 483–84. In his original decla-
ration of March 10, 2020, Governor Lamont (governor)
announced that he would issue executive orders ‘‘to
protect public health and safety, including suspension
or modification of specific statutes . . . as [he] deter-
mine[d] to be necessary.’’ Although each order was
limited to a six month period, as required by § 28-9
(b) (1), the governor renewed the declarations of both
emergencies multiple times. See Casey v. Lamont,
supra, 483–84.
Days after declaring the public health emergency in
March, 2020, the governor issued an executive order
temporarily cancelling all in-person public school
classes. See Executive Order No. 7C, § 1 (March 15,
2020). In May, 2020, the governor cancelled in-person
classes for the remainder of the 2019–2020 school year.
See Executive Order No. 7II, § 1 (May 5, 2020). In June,
2020, the department published a document titled ‘‘Plan
for Reimagining CT Classrooms for Continuous Learn-
ing,’’ which was subsequently updated in September,
2020, and retitled ‘‘Adapt, Advance, Achieve: Connecti-
cut’s Plan to Learn and Grow Together’’ (AAA), which
provided guidance to school districts as they planned
to reopen schools in the fall of 2020. The AAA contained
certain requirements that were defined as ‘‘elements
that the Office of the Governor, the [department], and/
or the [state Department of Public Health] have identi-
fied as necessary for [school districts] to complete or
comply with in order to open schools successfully [that]
fall,’’ including that all school districts adopt policies
requiring students and staff to wear a mask or other
form of face covering while on school property. The
AAA provided limited exceptions to this mandate.2
In September, 2020, the governor issued Executive
Order No. 9, which granted the Commissioner of Educa-
tion (commissioner) authority to ‘‘issue binding guid-
ance, rules, or orders for operation of schools . . .
deem[ed] necessary to respond to the COVID-19 pan-
demic . . . . Such rules or binding guidance may
include rules related to the required use of masks or
face-coverings in school buildings . . . .’’ Executive
Order No. 9, § 1 (September 4, 2020). The order
excluded the commissioner’s ‘‘binding guidance’’ from
the definition of ‘‘regulation’’ for purposes of General
Statutes § 4-166 (16) of the Uniform Administrative Pro-
cedure Act (UAPA). This exemption allowed the defen-
dants to issue and enforce binding guidance without
first providing notice to the public and an opportunity
to be heard. The governor directed that this executive
order would apply retroactively to the previously issued
AAA and any addendums or amendments. After Execu-
tive Order No. 9 was issued in September, 2020, the
governor extended it several times. During the pen-
dency of this appeal, the department updated the AAA
for the 2021–2022 school year, retaining the mask
requirement.
Less than one month before Executive Order No. 9
was issued, the plaintiffs3 filed this lawsuit, challenging
the school mask mandate in the AAA and seeking
declaratory and injunctive relief.4 Subsequently, the par-
ties filed motions for summary judgment.5 The trial
court granted the defendants’ motion for summary judg-
ment as to the third, fourth, fifth, and sixth counts
of the plaintiffs’ complaint. The trial court reserved
decision on the first two counts pending this court’s
decision in Casey v. Lamont, supra, 338 Conn. 479.
We subsequently released our decision in Casey. The
plaintiffs in that case had challenged the legality of
several executive orders that the governor issued during
the beginning of the COVID-19 pandemic, ‘‘limit[ing]
various commercial activities at bars and restaurants
throughout the state.’’ Id., 483. The plaintiffs argued
that these executive orders exceeded the governor’s
statutory and constitutional authority. Id., 486. The trial
court rejected the plaintiffs’ arguments, and this court
affirmed the trial court’s judgment, holding, first, that,
as a matter of statutory interpretation, the COVID-19
pandemic constituted a ‘‘serious disaster’’ under § 28-
9 (a), authorizing the governor to declare a civil pre-
paredness emergency pursuant to that statute. (Internal
quotation marks omitted.) Id., 498. Second, we held
that, ‘‘following the proclamation of a civil prepared-
ness emergency pursuant to § 28-9 (a), subsection (b)
(1) [as well as subsection (b) (7)] empowers the gover-
nor to modify or suspend any statute, regulation or
requirement that conflicts with the efficient and expedi-
tious execution of civil preparedness functions or the
protection of the public health’’ and that ‘‘[a]ll of the
challenged executive orders fall squarely within either
or both of these provisions.’’ Id., 499.
As to the plaintiffs’ constitutional claim, we held in
Casey that ‘‘the plaintiffs [had not met] their heavy
burden of establishing that [§ 28-9 (b) (1) violated] the
separation of powers provision of article second of
the Connecticut constitution on the [ground] that it
impermissibly delegates legislative authority to the gov-
ernor.’’ Id., 505. We reasoned that, in enacting § 28-9,
the General Assembly had established a clear policy
for the governor to follow in the case of a serious
disaster, as well as clear standards limiting the gover-
nor’s authority to act. See id., 507–508. As such, we held
that, although § 28-9 ‘‘affords the governor considerable
latitude . . . that latitude is neither standardless nor
limitless.’’ (Citation omitted.) Id., 517.6
Following the release of Casey, the trial court granted
the defendants’ summary judgment motion on the
remaining counts of the plaintiffs’ complaint, conclud-
ing that ‘‘[t]here can be little doubt that, between the
Casey [decision] and the General Assembly’s action
. . . [intelligible] principles and oversight exist and
have been strengthened. This means [the trial] court
must deem the governor’s actions within his rights
under the Connecticut constitution.’’ Although the trial
court did not specify why it granted the motion for
summary judgment on the count of the complaint alleg-
ing that the governor’s declarations were in violation
of the UAPA, the court had stated in its previous deci-
sion that that claim would ‘‘[have] no foundation’’ if
this court were to uphold the legality of Executive Order
No. 9 in Casey. With its latter ruling, the trial court had
therefore rejected each of the plaintiffs’ arguments. The
plaintiffs then appealed to the Appellate Court. We
transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
II
The plaintiffs’ lawsuit challenges the legality of the
defendants’ school mask mandate and seeks declara-
tory and injunctive relief. The plaintiffs have raised
four claims on appeal. The first three are procedural
in nature, while the last claim challenges the substance
of the mask mandate itself, alleging that it harms school-
children. The plaintiffs first claim that the department
improperly issued the school mask mandate without
complying with the procedural requirements of the
UAPA and that the governor’s execution of Executive
Order No. 9 could not cure this violation retroactively.
Second, the plaintiffs ask us to address an issue we
declined to reach in Casey: how long a governor may
continue to renew declarations of civil preparedness
emergencies and extend executive orders that modify
or suspend statutes and regulations. See Casey v.
Lamont, supra, 338 Conn. 507–508 n.11. Specifically, the
plaintiffs claim that the governor improperly extended
Executive Order No. 9 multiple times and that the civil
preparedness emergency statute, § 28-9, does not per-
mit the governor to renew executive orders that sus-
pend statutes for longer than six months. Third, they
claim that No. 22-1 of the 2022 Special Acts (S.A. 22-1),
the basis for the governor’s latest renewal of Executive
Order No. 9,7 unconstitutionally delegates legislative
power to the Executive Branch in violation of both
the separation of powers provision set forth in article
second of the Connecticut constitution and the social
compact clause of article first, § 1, of the Connecticut
constitution. Finally, the plaintiffs claim that the mask
mandate violates schoolchildren’s rights to the free pub-
lic education guaranteed by article eighth of the Con-
necticut constitution because it places them at risk of
physical harm and impairs their education.
The department repealed the school mask mandate
on March 7, 2022, while this appeal was pending. See
State of Connecticut, State Board of Education, Letter
to Superintendents and Private/Independent School
Administrators (March 7, 2022). Soon after the mandate
was repealed, the defendants moved this court to dis-
miss the plaintiffs’ appeal as moot.
‘‘[M]ootness implicates [this] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve’’ before we may reach the merits of an appeal.
(Internal quotation marks omitted.) In re Emma F., 315
Conn. 414, 423, 107 A.3d 947 (2015). ‘‘It is a [well settled]
general rule that the existence of an actual controversy
is an essential requisite to appellate jurisdiction; it is
not the province of appellate courts to decide moot
questions, disconnected from the granting of actual
relief or from the determination of which no practical
relief can follow. . . . An actual controversy must exist
not only at the time the appeal is taken, but also through-
out the pendency of the appeal.’’ (Internal quotation
marks omitted.) Id.The plaintiffs do not argue that their appeal and the
underlying action still constitute a live controversy, and
we agree with the defendants that this court can no
longer provide the plaintiffs with any practical relief.
See, e.g., Connecticut Coalition Against Millstone v.
Roque, 267 Conn. 116, 124–25, 836 A.2d 414 (2003).
Instead, the plaintiffs oppose the defendants’ motion
to dismiss this appeal and urge us to reach the merits of
this case by relying on two exceptions to the mootness
doctrine: ‘‘capable of repetition, yet evading review’’
and ‘‘voluntary cessation.’’ We are not persuaded that
either exception applies and therefore dismiss this
appeal for lack of subject matter jurisdiction.
A
‘‘The mootness doctrine does not preclude a court
from addressing an issue that is capable of repetition,
yet evading review. . . . [F]or an otherwise moot ques-
tion to qualify for review under the capable of repeti-
tion, yet evading review exception, it must meet three
requirements. First, the challenged action, or the effect
of the challenged action, by its very nature must be of
a limited duration so that there is a strong likelihood
that the substantial majority of cases raising a question
about its validity will become moot before appellate
litigation can be concluded. Second, there must be a
reasonable likelihood that the question presented in the
pending case will arise again in the future, and that it
will affect either the same complaining party or areaso-
nably identifiable group for whom that party can be
said to act as surrogate. Third, the question must have
some public importance. Unless all three requirements
are met, the appeal must be dismissed as moot.’’ (Inter-
nal quotation marks omitted.) Burbank v. Board of Edu-
cation, 299 Conn. 833, 839–40, 11 A.3d 658 (2011).
The defendants do not contest that the issues the
plaintiffs raise are of ‘‘ ‘some public importance.’ ’’ In
fact, they could not credibly maintain that an action
concerning the governor’s authority to issue and extend
executive orders of the nature involved in the present
case during a civil preparedness emergency is not of
the utmost public importance. Therefore, we have no
trouble concluding that the third requirement of the
applicable standard is satisfied.
Although we assume, without deciding, that the pres-
ent appeal meets the first requirement of the capable
of repetition, yet evading review exception, often
referred to as the ‘‘durational requirement,’’ we con-
clude that the second requirement is dispositive of this
appeal because, under our precedents, there is not ‘‘a
reasonable likelihood that the question presented in the
pending case will arise again in the future, and that
it will affect either the same complaining party or a
reasonably identifiable group for whom that party can
be said to act as a surrogate.’’ (Internal quotation marks
omitted.) Earl B. v. Commissioner of Children & Fami-
lies, 288 Conn. 163, 170, 952 A.2d 32 (2008). This condi-
tion has two components: ‘‘(1) whether the question
presented will recur at all; and (2) whether the interests
of the people likely to be affected by the question pre-
sented are adequately represented in the current litiga-
tion.’’ Loisel v. Rowe, 233 Conn. 370, 384, 660 A.2d 323(1995). The first component is not met if there is a mere
possibility that the question will recur. See Russo v.
Common Council, 80 Conn. App. 100, 110, 832 A.2d
1227 (2003) (‘‘Loisel does not provide an exception to
the mootness doctrine when it is merely possible that
a question could recur’’ (emphasis omitted)).
In addressing this second requirement, the parties
frame the issues too narrowly by focusing solely on
whether the mask mandate itself is likely to be rein-
stated. The appropriate inquiry is whether there is a
‘‘reasonable likelihood’’ that the particular governmen-
tal actions the plaintiffs challenge will arise in a similar
manner in the future. This requires the court to consider
what the party is ‘‘directly challenging,’’ not the event
that the appeal arises from. In re Priscilla A., 122 Conn.
App. 832, 838, 2 A.3d 24 (2010). The first three of the
plaintiffs’ claims on appeal challenge the defendants’
enactment and extension of the school mask mandate,
not the mandate itself. Therefore, we must consider the
governmental actions the plaintiffs challenge (i.e., the
department’s alleged UAPA violation, the governor’s
issuance of executive orders under § 28-9 (b) (1), and
the General Assembly’s alleged unconstitutional delega-
tion of legislative power to the Executive Branch), not
the outcome of those actions (i.e., the mask mandate).
Whether the mask mandate is reasonably likely to be
reinstated is relevant only to the plaintiffs’ final claim:
that the mask mandate violates schoolchildren’s rights
to a free public education. We will address each of the
plaintiffs’ challenges in turn to determine if any of them
meet the second requirement of the capable of repeti-
tion, yet evading review exception to the mootness doc-
trine.8
The plaintiffs’ first claim that the department violated
the UAPA by issuing the mask mandate through the
AAA. Given the unique nature of the COVID-19 pan-
demic, and the lack of precedent for how to address
such a widespread and prolonged health emergency, it
is purely speculative that, in the case of a future civil
preparedness emergency, the department will issue any
necessary guidance in the same way it did in 2020. In
particular, after the department issued the AAA guid-
ance, the governor issued Executive Order No. 9, which,
among other things, exempted the department’s ‘‘bind-
ing guidance’’ from the definition of ‘‘regulation’’ in the
UAPA. See General Statutes § 4-166 (16). In turn, this
gave rise to the plaintiffs’ argument in this lawsuit that
the governor could not cure the claimed UAPA violation
retroactively. We consider it unlikely that, when the
department faces a similar civil preparedness or health
emergency in the future, it will issue binding guidance,
such as the mask mandate, by employing the same
procedure that the plaintiffs have challenged. See Russo
v. Common Council, supra, 80 Conn. App. 110 (although
defendants did not concede that their actions in estab-
lishing town’s mill rate were improper, ‘‘there . . .
[was] no indication that there is a reasonable likelihood
the defendants plan[ned] to use that method in the
future’’). As counsel for the defendants indicated at oral
argument before this court, although it is ‘‘possible’’
that this could recur, that possibility does not rise to
the level of a reasonable likelihood. The circumstances
facing the defendants early in the pandemic cannot be
replicated. Prior to March, 2020, there was no clear
guidance as to how the Legislative and Executive
Branches could or should respond to a pandemic of
this magnitude. With newly acquired knowledge borne
of experience, the defendants are unlikely to address
future civil emergencies, including those that might
arise out of the current pandemic, in the same way.
The plaintiffs’ second claim is that the governor
unlawfully extended Executive Order No. 9 multiple
times. They argue that § 28-9 does not permit the gover-
nor to renew his declaration of a civil preparedness
emergency or the executive orders promulgated under
that declaration. Once again, it is entirely speculative
that the state, the nation, or the world will experience
another pandemic of the same extended nature or that
a governor will employ the same procedure in a future
emergency. Indeed, since the filing of this action, the
General Assembly has taken steps to validate the gover-
nor’s issuance and extension of executive orders under
§ 28-9. No. 21-2 of the 2021 Special Acts (S.A. 21-2)
authorized the governor to renew orders issued pursu-
ant to his earlier emergency declarations and No. 21-
5 of the 2021 Special Acts (S.A. 21-5) extended that
authority. Special Act 21-5, § 2 (a) (2), required that a
majority of both houses of the General Assembly
approve the governor’s renewals, and § (2) (b) provided
a method for a joint legislative committee to disapprove
of these extensions. Special Act 22-1, § 1 (c) (1),
extended Executive Order No. 9 through June 30, 2022,
and authorized the department to rescind the school
mask mandates after February 28, 2022. Especially in
light of legal challenges to actions the governor under-
took during this pandemic, the General Assembly now
has the knowledge and experience to determine
whether to validate or nullify executive orders that
might be issued in a hypothetical future emergency of
the same magnitude or length. See Darien v. Estate of
D’Addario, 258 Conn. 663, 679–80, 784 A.2d 337 (2001)
(‘‘town’s argument that the referendum outcome [did]
not preclude it from revisiting the issue simply [meant]
that if and when the town [did] revisit the issue, there
[would] be a case in controversy for our consideration
at that time’’).
The plaintiffs’ third claim is that the General Assem-
bly unconstitutionally delegated legislative power to
the governor by passing multiple special acts ratifying
the governor’s declarations of an emergency and
allowing him to extend those declarations. See, e.g.,
S.A. 22-1; S.A. 21-5; S.A. 21-2. As previously discussed, it
is entirely speculative that a pandemic of this magnitude
and duration will occur in the future. A majority of
civil preparedness emergencies declared in Connecticut
prior to the COVID-19 pandemic were issued in
response to far less long-lasting natural disasters and
severe weather conditions. See, e.g., Governor Dannel
P. Malloy, Executive Order No. 43 (January 26, 2015)
(noting that ‘‘a civil preparedness proclamation was
issued by the [g]overnor on January 26, 2015, due to
the severe weather conditions predicted to affect the
state’’); Governor Dannel P. Malloy, Executive Order
No. 33 (March 18, 2013) (ending civil preparedness
emergency declared in response to severe weather
caused by Hurricane Sandy in 2012). Although the exact
duration of our state’s previous civil preparedness
emergencies is difficult to ascertain, it is reasonable
for this court to assume that, because they are often
weather related, most civil preparedness emergencies
last only a few weeks or months. Therefore, it is unlikely
that the legislature will be confronted with a similar
emergency in which the governor seeks to extend his
emergency powers beyond what this court in Casey
held did not violate the separation of powers doctrine.
See Casey v. Lamont, supra, 338 Conn. 505. If there
is such an occasion, and given the most recent court
challenges to those extensions, we have confidence that
a plaintiff will be able to reach this court with a live
case, including by enlisting the help of the appellate
courts, up to and including the Chief Justice. See Gen-
eral Statutes § 52-265a (allowing for public interest
appeal upon certification by Chief Justice); Practice
Book § 83-2 (specifying procedure for filing public inter-
est appeal); see also Practice Book § 73-1 (allowing
parties to reserve questions of law for consideration by
appellate courts).
The plaintiffs’ final claim is that the mask mandate
violates schoolchildren’s rights to a free public educa-
tion. Because there are currently no mask mandates in
the state, it is entirely speculative that the defendants
will issue another school mask mandate. Since the
repeal of the mandate in February, 2022, neither the
governor nor the department has indicated an intention
to reinstate the mandate. To conclude that there is a
reasonable likelihood that a school mask mandate will
be reinstated would require this court to predict the
future trajectory of the current pandemic as well as
how the political branches will respond to a return of
more severe conditions or increased risk of contagion.
We agree with several federal courts that have held that
repealed COVID-19 restrictions render a case moot and
that a finding that an exception applies ‘‘would require
both scientific and political speculation—i.e., that the
pandemic will proceed in a particular way, and that [the]
political branches will decide to reimpose the particular
restrictions challenged in [the] case.’’ (Internal quota-
tion marks omitted.) Hinkle Family Fun Center, LLC
v. Grisham, 586 F. Supp. 3d 1118, 1138 (D.N.M. 2022)
(quoting Let Them Play MN v. Walz, 556 F. Supp. 3d
968, 978–79 (D. Minn. 2021)), aff’d, United States Court
of Appeals, Docket No. 22-2028 (10th Cir. December
28, 2022); see also Butler v. Governor, 8 F.4th 226, 231
(3d Cir. 2021) (although secretary of health of common-
wealth of Pennsylvania retained power to issue pan-
demic related orders subsequent to expiration of orders
challenged on appeal, case was still moot), cert. denied
sub nom. Butler County v. Wolf, U.S. , 142 S.
Ct. 772, 211 L. Ed. 2d 482 (2022); Spell v. Edwards, 962
F.3d 175, 180 (5th Cir. 2020) (it was ‘‘speculative, at
best’’ that governor would reimpose same or similar
restriction); cf. Johnson v. Governor, Docket No. 21-
1795, 2022 WL 767035, *3 (3d Cir. March 14, 2022) (‘‘[t]he
mere power to reenact a challenged law is not enough’’
to come within the exception (internal quotation marks
omitted)). Therefore, we conclude that, under our prec-
edents, the plaintiffs have failed to prove that their
claims are capable of repetition, yet evading review.
B
The plaintiffs also argue that the voluntary cessation
exception to the mootness doctrine should prevent us
from dismissing this appeal. Specifically, they argue
that the defendants have not demonstrated that their
‘‘ ‘allegedly wrongful behavior’ ’’ will not recur. The
defendants respond that the voluntary cessation doc-
trine does not apply because the cessation of the mask
mandate was ‘‘not ‘taken for the deliberate purpose of
evading a possible adverse decision . . . .’ ’’ Alterna-
tively, they argue that, if the doctrine applies, the school
mask mandate cannot reasonably be expected to be
reinstated. We agree with the defendants that the
requirements of the exception are not satisfied.
We have seldom had reason to address the voluntary
cessation exception to the mootness doctrine. As
between private parties, and relying on case law involv-
ing private parties, we have stated that, ‘‘a defendant’s
voluntary cessation of a challenged practice does not
deprive a . . . court of its power to determine the legal-
ity of the practice, because, [i]f it did, the courts would
be compelled to leave [t]he defendant . . . free to
return to his old ways.’’ (Internal quotation marks omit-
ted.) Boisvert v. Gavis, 332 Conn. 115, 139–40, 210 A.3d
1 (2019). We went on to state in Boisvert that ‘‘the
standard for determining whether a case has been
mooted by the defendant’s voluntary conduct is strin-
gent, and a case becomes moot only if subsequent
events [make] it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected
to recur. . . . The heavy burden of persua[ding] the
court that the challenged conduct cannot reasonably be
expected to start up again lies with the party asserting
mootness.’’ (Citation omitted; internal quotation marks
omitted.) id., 140; see also Windels v. Environmental
Protection Commission, 284 Conn. 268, 281–82, 933
A.2d 256 (2007) (holding that defendant’s voluntary ces-
sation of plans to develop lot did not render case moot,
as developer had ‘‘not alleged, much less established,
that it [did] not intend to resume any development activ-
ity on the . . . lot . . . [and] the plaintiffs . . . could
obtain [injunctive] relief . . . that would apply to any
future work on the . . . lot’’).
When governmental actors have voluntarily ceased
the conduct alleged to have been unlawful, however,
we have determined that some deference is appropriate.
For example, in St. Pierre v. Solnit, 233 Conn. 398, 658
A.2d 977 (1995), inpatients at a state hospital challenged
a no-smoking policy in certain facilities that was imple-
mented as an unadopted regulation by the Commis-
sioner of Mental Health. Id., 399–400. Just after the
plaintiffs filed their complaint in the trial court, the
Commissioner of Mental Health revised the no-smoking
policy. Id. Although the plaintiffs ‘‘acknowledge[d] that
the . . . revised policy provide[d] them with the sub-
stantive relief that they sought in their complaint,’’ they
claimed ‘‘that they continue[d] to have the right to chal-
lenge the validity of the superseded’’ policy, citing
Loisel for the capable of repetition, yet evading review
exception to the mootness doctrine. Id., 401. Rebuffing
the plaintiffs’ argument that the ‘‘possibility that the
Commissioner [of Mental Health] unilaterally will rein-
state the superseded smoking policy’’ sufficed to bring
the appeal within a mootness exception, this court
agreed that ‘‘[v]oluntary cessation by a party free to
resume the challenged activity . . . will not automati-
cally shield a claim for an injunction against that very
activity from review.’’ Id., 402. However, this court
relied on the representations of the Deputy Commis-
sioner of Mental Health that ‘‘[t]he Department [of Men-
tal Health did] not anticipate reinstatement’’ of the pol-
icy, which ‘‘would prohibit smoking by inpatients in
Department [of Mental Health] buildings’’; id., 400 n.3;
and was ‘‘persuaded that there [was] no reasonable
expectation’’ that the challenged policy would be rein-
stated. Id., 402.
The deference that St. Pierre gave to governmental
actions is consistent with that given in numerous federal
court decisions. As our state jurisprudence on the vol-
untary cessation exception is scant, we find federal law
persuasive. For example, when applying this doctrine
to governmental actions, the United States Court of
Appeals for the Second Circuit recognized that ‘‘some
deference must be accorded to a legislative body’s rep-
resentations that certain conduct has been discontinued
. . . .’’ (Internal quotation marks omitted.) Mhany
Management, Inc. v. Nassau, 819 F.3d 581, 604 (2d Cir.
2016). Official government action to rescind a chal-
lenged policy also ‘‘lends force to the representation
that in the future the violation will not recur.’’ Saba v.
Cuomo, 535 F. Supp. 3d 282, 296 (S.D.N.Y. 2021). This
does not constitute a guarantee of ‘‘ ‘unquestioned
acceptance’ ’’ of governmental representations. Id., 297.
Rather, under some circumstances, courts must con-
sider when the challenged behavior ceased and whether
it appears to ‘‘track’’ the litigation. Mhany Management,
Inc. v. Nassau, supra, 604; see id. (noting ‘‘suspicious
timing and circumstances’’ surrounding defendant’s
cessation of challenged activity that appeared to ‘‘track
the development of [the] litigation’’); see also Litowitz
v. Garland, Docket No. 3:20-cv-724 (AWT), 2021 WL
3679144, *5 (D. Conn. August 19, 2021) (recognizing
that defendant’s cessation of challenged policy
occurred only two months after litigation commenced
in United States District Court and that there were
‘‘inconsistent messages’’ from leadership regarding
whether policy would be reinstated in future).
The ‘‘found[ing] . . . principle [of the voluntary ces-
sation doctrine is] that a party should not be able to
evade judicial review, or to defeat a judgment, by tempo-
rarily altering questionable behavior.’’ (Internal quota-
tion marks omitted.) Boisvert v. Gavis, supra, 332 Conn.
139. This exception applies especially to parties who
cease the challenged behavior for the purpose of
avoiding litigation. See, e.g., Hartnett v. Pennsylvania
State Education Assn., 963 F.3d 301, 307 (3d Cir. 2020)
(rather than being an exception to mootness, ‘‘[v]olun-
tary cessation is just a recurring situation in which
courts are particularly skeptical of mootness argu-
ments’’). Therefore, when considering whether to apply
the voluntary cessation exception in a particular case,
the court must consider when and why a party ceased
the challenged action.
The plaintiffs argue that, unless we opine on the legal-
ity of the mask mandate, the defendants ‘‘will . . .
revert to the very conduct that [the plaintiffs] are chal-
lenging to cope with new COVID-19 variants.’’ This is
pure speculation. The defendants have expressed—
both publicly and before this court—that they repealed
the mandates because the circumstances of the pan-
demic had changed.9 This court has no reason to disbe-
lieve those statements, and, significantly, the plaintiffs
do not suggest that the defendants’ motivation was to
avoid an adverse decision. See Feehan v. Marcone, 331
Conn. 436, 468, 204 A.3d 666 (courts must presume that
state officials ‘‘act in good faith and in sincerity of
purpose in the execution of [their] duties’’ (internal
quotation marks omitted)), cert. denied, U.S. ,
140 S. Ct. 144, 205 L. Ed. 2d 35 (2019). Indeed, the mask
mandate remained in place for eighteen months after
the plaintiffs filed this lawsuit, and, since its repeal in
March, 2022, the defendants have not suggested that
they plan to reinstate it. There currently is no state
mask mandate, in schools or elsewhere. The record is
bereft of any evidence that the defendants repealed the
mandate in response to litigation or with the intent to
reinstate the policy after a dismissal of this appeal.
The plaintiffs further argue that the defendants have
not met their heavy burden of proving that it is abso-
lutely clear that they will not reinstate the mask man-
date. However, the plaintiffs’ fear is rooted in an
assumption that the circumstances of the current pan-
demic will worsen or that a new pandemic will occur.
This concern is more appropriately addressed in our
application of the capable of repetition, yet evading
review standard. Because we accept the defendants’
representations that they did not repeal the mandate
to avoid litigation and that there is no current intention
to reinstate the mandate, we cannot conclude that their
conduct is ‘‘reasonably expected’’ to recur. We there-
fore conclude that the voluntary cessation exception
does not apply to overcome the admitted mootness of
the controversy in this case.
III
Our conclusion that this appeal has become moot
may be viewed as anticlimactic given the passions
brought to the public controversy that led to what was
once a live, legal dispute, as well as the resources
devoted to prosecuting and defending this action. Dis-
appointment in this outcome can lead to claims that
the court is ‘‘ ‘ducking’ ’’ important issues; Naylor v.
Superior Court, 558 F.2d 1363, 1366 (9th Cir. 1977),
cert. denied, 435 U.S. 946, 98 S. Ct. 1530, 55 L. Ed. 2d
544 (1978); see id. (‘‘[m]ootness is not merely a ‘ducking
device’ ’’); or shirking our constitutional responsibility.
See Hornbeck Offshore Services, L.L.C. v. Salazar, 396
Fed. Appx. 147, 148 n.3 (5th Cir. 2010) (‘‘[a]s to the . . .
charge that our decision ‘shirks’ our judicial responsibil-
ity, we are decidedly unpersuaded that one of this
court’s duties is to render judgment on matters that are
not before us’’). Less cynically, the plaintiffs’ counsel
in the present case implores us to recognize that there
is a need for us to police the proper boundaries of
constitutional power among the branches of govern-
ment. Notwithstanding these understandable senti-
ments, we are resolved to resist the temptation to opine
on issues concerning the emergency powers of another
branch of government when the need for our opinion
has passed.
Through the federal and state constitutions, the citi-
zens of this nation and this state have created courts
to resolve disputes in a civilized manner. See U.S.
Const., art. III, § 1; Conn. Const., art. V, § 1; see also
Thompson v. Washington, 497 F.2d 626, 634 (D.C. Cir.
1973) (describing ‘‘importance of courts in the resolu-
tion of disputes in a civilized society’’). These constitu-
tions—state and federal—establish the judiciary as a
separate branch of government, both for resolving con-
flicts between citizens and as a check on the other two
branches of government. See Casey v. Lamont, supra,
338 Conn. 503 (‘‘[t]he constitution . . . prescribe[es]
limitations and duties for each branch that are essential
to each branch’s independence and performance of
assigned powers’’ (internal quotation marks omitted)).
Citizens and taxpayers have sufficient confidence in
the judicial branches of government that they tolerate
being taxed for, and permit their elected representatives
to fund, this system of justice. It is important enough
to the people of Connecticut particularly that our courts
should be available to resolve disputes, including those
brought by persons claiming aggrievement as a result
of the actions of their government, that they have
enshrined this value in the open courts provision of our
state constitution. See Conn. Const., art. I, § 10;10 see
also Sabino v. Ruffolo, 19 Conn. App. 402, 408, 562 A.2d
1134 (1989) (‘‘Connecticut’s constitution specifically
assures the citizens under its protection that the state’s
courts will be open for the resolution of their disputes’’).
It is well understood that Connecticut courts, like
the federal courts, limit themselves to ruling on cases
or controversies. See, e.g., Travelers Casualty & Surety
Co. of America v. Netherlands Ins. Co., 312 Conn. 714,
730, 95 A.3d 1031 (2014). However, because ‘‘our state
constitution contains no ‘case or controversy’ require-
ment like that found in article three of the United States
[c]onstitution’’; Connecticut Assn. of Health Care Facil-
ities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743(1986); unlike the federal courts, we do not concern
ourselves with the question of whether our jurisdic-
tional principles—e.g., standing, ripeness, mootness
and political question—derive from the constitution
itself or from prudential considerations. Cf. E. Chemeri-
nsky, ‘‘A Unified Approach to Justiciability,’’ 22 Conn.
L. Rev. 677, 691–92 (1990). Rather, the jurisdictional
boundaries of our courts, including ‘‘[o]ur mootness
jurisprudence,’’ have ‘‘evolved under our common law.’’
State v. McElveen, 261 Conn. 198, 212, 802 A.2d 74(2002).11
Practically, this means that Connecticut courts will
rule only on live controversies—i.e., those in which the
parties before us require resolution. Cf. Wendy V. v.
Santiago, 319 Conn. 540, 544–45, 125 A.3d 983 (2015)
(‘‘[A]n actual controversy must exist not only at the time
the appeal is taken, but also throughout the pendency
of the appeal. . . . When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot.’’ (Inter-
nal quotation marks omitted.)). Like the federal courts,
‘‘[w]e do not give advisory opinions’’; we do not ‘‘sit as
roving commissions assigned to pass judgment on the
validity of legislative enactments’’ (internal quotation
marks omitted) Bell Atlantic Mobile, Inc. v. Dept. of
Public Utility Control, 253 Conn. 453, 490, 754 A.2d
128 (2000); and we ‘‘do not exercise general legal over-
sight of the Legislative and Executive Branches, or of
private entities.’’ Transunion LLC v. Ramirez, U.S.
, 141 S. Ct. 2190, 2203, 210 L. Ed. 2d 568 (2021).
Reticence under these circumstances is borne of
sound judicial policy. First, we ensure ‘‘that judicial
decisions [that] may affect the rights of others are
forged in hot controversy, with each view fairly and
vigorously represented.’’ (Internal quotation marks
omitted.) State v. McElveen, supra, 261 Conn. 204. And
even when, as in the present case, we have little reason
to doubt the temperature of the controversy, when the
case implicates the actions of the legislature or the
executive, prudence counsels that we ‘‘limit the role of
the unelected judiciary and . . . minimize oversight of
the other branches of government.’’ E. Chemerinsky,
supra, 22 Conn. L. Rev. 693–94. In cases such as the
present one, this ‘‘recognized policy of self-restraint’’
is also consistent with ‘‘the basic judicial duty to eschew
unnecessary determinations of constitutional ques-
tions.’’ Negron v. Warden, 180 Conn. 153, 166, 429 A.2d
841 (1980). Confidence and trust in our courts—by the
parties and the public—are critical to our judiciary’s
continued credibility. That confidence and trust can be
undercut by a court too reticent to act in the face of a
live and ‘‘hot controversy.’’ So, too, can it be undercut
by a court too eager to jump into such a fray.
Thus, our charge is to resolve only live disputes, no
matter how interesting the moot issues presented might
be to us or to the parties before us, or how important
the case might have been at an earlier time. To do
otherwise risks embroiling our courts in imagined con-
troversies or those already resolved, along with use-
lessly expending judicial resources better put to resolv-
ing other parties’ cases. See, e.g., Note, ‘‘The Mootness
Doctrine in the Supreme Court,’’ 88 Harv. L. Rev. 373,
376 (1974).
The political branches have repealed the mask man-
date at issue, and any opinion we might provide regard-
ing the legality of such a moot controversy might
appear, unnecessarily, either to weaken or to fortify
the authority of those branches. This is to be avoided.
Should circumstances revive the controversy that
prompted the plaintiffs’ lawsuit or give rise to contro-
versies like it, our courts—including this court—have
shown that they are capable of hearing and ruling on
the matter with alacrity when conditions dictate and
when called on by the parties to do so.12
The appeal is dismissed.
In this opinion the other justices concurred.
* January 12, 2023, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 28-9 provides in relevant part: ‘‘(a) In the event of
serious disaster, enemy attack, sabotage or other hostile action or in the
event of the imminence thereof, the Governor may proclaim that a state of
civil preparedness emergency exists . . . .
‘‘(b) . . . (1) Following the Governor’s proclamation of a civil prepared-
ness emergency pursuant to subsection (a) of this section or declaration of
a public health emergency pursuant to § 19a-131a, the Governor may modify
or suspend in whole or in part, by order as hereinafter provided, any statute,
regulation or requirement or part thereof whenever the Governor finds such
statute, regulation or requirement, or part thereof, is in conflict with the
efficient and expeditious execution of civil preparedness functions or the
protection of the public health. The Governor shall specify in such order
the reason or reasons therefor and any statute, regulation or requirement
or part thereof to be modified or suspended and the period, not exceeding
six months unless sooner revoked, during which such order shall be
enforced. . . .’’
2
The AAA stated that masks should not be required for ‘‘anyone who has
trouble breathing, or anyone who is unconscious, incapacitated or otherwise
unable to remove the mask without assistance,’’ or for ‘‘anyone who has a
medical reason making it unsafe to wear’’ a mask. The AAA also permitted
exceptions for students with special needs and speech therapy, for teachers
who teach class sufficiently distanced from their students, for students while
outside, and for ‘‘mask breaks throughout the day.’’
3
Along with CT Freedom Alliance, LLC, the plaintiffs include four parents
(Jenna Matos, Michelle Crawford, Raena Ferguson, and Ruth Brignatti)
individually and as next friends of their respective children.
4
The plaintiffs’ amended complaint contained the following six counts:
(1) the promulgation of the AAA mask mandate violated the notice and
comment requirements contained in General Statutes § 4-168 of the UAPA;
(2) the governor lacked authority to issue Executive Order No. 9 because
the COVID-19 pandemic does not qualify as a ‘‘serious disaster’’ within
the meaning of § 28-9, and the governor’s actions pursuant to § 28-9 are
unconstitutional under the separation of powers provision contained in
article second of the Connecticut constitution; (3) the AAA places an uncon-
stitutional burden and restriction on the rights of the plaintiffs’ children to
a free and public education under article eighth of the Connecticut constitu-
tion; (4) the AAA violates the plaintiffs’ procedural due process rights under
the fifth and fourteenth amendments to the United States constitution; (5)
the AAA mandate violates the social compact clause of article first, § 1, of
the Connecticut constitution; and (6) the issuance of the AAA was negligent
because it was ‘‘likely’’ to cause harm to public school students.
5
In their motion for summary judgment, the defendants argued that, as
to count one of the plaintiffs’ amended complaint, Executive Order No. 9
mooted the claim that the department’s promulgation of the mask mandate
violated the UAPA. Alternatively, the defendants argued that, even if Execu-
tive Order No. 9 did not validate the issuance of the mask mandate, the
governor’s Executive Order 7BB already required all persons to wear masks
in public places, and, therefore, the AAA ‘‘did not constitute a prescription
or interpretation of a law or policy.’’ See Executive Order No. 7BB (April
17, 2020). As to counts two and five of the amended complaint, which
challenged the legality of Executive Order No. 9 on statutory and constitu-
tional grounds, the defendants argued that (1) this court’s preliminary ruling
in Casey upheld the trial court’s determination that the pandemic was a
‘‘serious disaster’’ within the plain meaning of § 28-9, and (2) the social
compact clause of article first, § 1, of the Connecticut constitution is irrele-
vant to the case. As to count three, in which the plaintiffs claimed that the
mask provisions of the AAA are facially unconstitutional under article eighth
of the Connecticut constitution, the defendants argued that, even if it is
assumed that there was a disputed issue of fact as to whether masks are
harmful to schoolchildren, the plaintiffs’ facial challenge fails as a matter
of law because (1) whether to require masks is a policy choice courts are
unable to question, (2) the mandate could not violate all children’s rights
to a public education because there are exceptions, and (3) the mandates
are justified by a compelling governmental interest. As to count four of the
amended complaint, in which the plaintiffs alleged that the AAA places an
unconstitutional burden and restriction on the rights of the plaintiff children
to a free and public education under article eighth of the Connecticut consti-
tution, the defendants argued that it is improper to bring a facial, procedural
due process claim, and, therefore, this claim fails as a matter of law. Finally,
as to count six, in which the plaintiffs alleged a claim of negligence, the
defendants argued that they are entitled to sovereign immunity against
common-law negligence claims.
By contrast, in their own summary judgment motion, the plaintiffs argued
that, as to count one, the defendants did not comply with the statutory
requirements for promulgating a regulation, and, therefore, the AAA violated
General Statutes § 4-168 of the UAPA as a matter of law. As to count two, the
plaintiffs argued that the COVID-19 pandemic did not constitute a ‘‘serious
disaster,’’ and, therefore, the governor lacked the statutory authority to
declare a civil preparedness emergency and to extend that emergency. As
to count three, the plaintiffs argued that, as a matter of law, when the state
adopts a policy that allegedly harms children, their right to a free public
education is violated as a matter of law. The plaintiffs argue that, as to count
four, they had the constitutional right to be heard before the promulgation
of a regulation, and, therefore, the publication of the AAA without an oppor-
tunity to be heard violated their due process rights. As to count five, the
plaintiffs argued that § 28-9 violates the social compact clause of article
first, § 1, of the Connecticut constitution on its face because it delegated
‘‘all of the legislative power’’ to the Executive Branch. The plaintiffs did not
make an argument in support of summary judgment on their common-law
negligence claim, and we note that this claim is not one for personal injury
damages, as the plaintiffs have not claimed damages in their complaint.
6
Since the release of Casey, the General Assembly has taken additional
steps to oversee the governor’s renewal of his emergency declarations and
executive orders. During its January, 2021 session, the General Assembly
passed Nos. 21-2, 21-4 and 21-5 of the 2021 Special Acts, which ratified the
governor’s actions during the pandemic and authorized him, subject to
oversight by a legislative committee, to extend the civil preparedness emer-
gency through March, 2022. These acts required the General Assembly to
approve by resolution any of the governor’s new declarations. In February,
2022, the General Assembly also extended the governor’s emergency powers
through June, 2022, by passing S.A. 22-1.
7
At the time the parties filed their briefs, the plaintiffs challenged S.A.
21-5, which validated the governor’s renewal of Executive Order No. 9
through February 15, 2022.
8
Although we have assumed, without deciding, that the (first) durational
requirement of the capable of repetition, yet evading review exception is
met, we take this opportunity to clarify how we measure this requirement.
‘‘The first element in the analysis pertains to the length of the challenged
action . . . [and whether there are] functionally insurmountable time con-
straints’’ to full appellate review. Loisel v. Rowe, supra, 233 Conn. 383. To
determine if an issue will evade review, this court has relied on the average
length of the challenged action. See, e.g., U.S. Bank National Assn. v.
Crawford, 333 Conn. 731, 749, 219 A.3d 744 (2019). Consistent with our
approach to the second requirement, this requires the court to consider the
average lifespan of the challenged action on appeal, not the individual harm
alleged in the case. For example, in State v. Boyle, 287 Conn. 478, 487–88
n.3 949 A.2d 460 (2008), this court considered the possible length of the
probationary period for all crimes, not just the crime of which the defendant
had been convicted in that case. See also U.S. Bank National Assn. v.
Crawford, supra, 748–49 (considering length of cases filed under chapter
13 of United States Bankruptcy Code, 11 U.S.C. § 1301 et seq. (2012), in
general); In re Emoni W., 305 Conn. 723, 732–33, 48 A.3d 1 (2012) (consider-
ing average length of time between order for study and approval in all cases
from previous six years).
If we were to address the first requirement in the present case, this court
would focus on the time limitations inherent in the governmental actions that
the plaintiffs’ challenge—the department’s alleged violation of the UAPA,
the governor’s issuance of executive orders under § 28-9 (b) (1), and the
legislature’s power to delegate legislative power to the Executive Branch.
Only the plaintiffs’ claim challenging the constitutionality of the mask man-
date would require us to consider the duration of a mask mandate itself.
9
In announcing the end of the mask mandate, the governor stated: ‘‘Con-
necticut is seeing a dramatic decline in cases caused by the Omicron variant,
and children over the age of [five] have had the ability to get vaccinated
for more than three months now. . . . With this in mind, I think we are in
a good position to phase out the requirement that masks be worn in all
schools statewide and shift the determination on whether to require this to
the local level.’’ (Internal quotation marks omitted.) ABC 7 Eyewitness News,
Connecticut COVID omicron update: Gov. Lamont recommends dropping
school mask mandate Feb. 28 (February 7, 2022), available at COVID Omi-
cron CT Update: Gov. Lamont recommends dropping school mask mandate
Feb. 28 - ABC7 New York (abc7ny.com) (last visited January 12, 2023).
10
The constitution of Connecticut, article first, § 10, provides: ‘‘All courts
shall be open, and every person, for an injury done him in his person,
property or reputation, shall have remedy by course of law, and right and
justice administered without sale, denial or delay.’’
11
As such, although we often borrow from federal case law, our jurisdic-
tional jurisprudence is our own. See State v. McElveen, supra, 261 Conn.
210 (reviewing federal mootness jurisprudence to inform court’s application
of collateral consequences doctrine). For example, our application of the
capable of repetition, yet evading review standard varies slightly from the
federal courts. ‘‘Although the phrase ‘capable of repetition, yet evading
review’ comes from the United States Supreme Court case of Southern
Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498,
515, 31 S. Ct. 279, 55 L. Ed. 310 (1911), and was further developed by that
court in Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed.
2d 350 (1975), we have historically exercised our authority to develop our
own criteria for the application of this exception to mootness. Under federal
law, the exception applies only [when] two elements combine: (1) the chal-
lenged action was in its duration too short to be fully litigated prior to its
cessation or expiration; and (2) in the absence of a class action, there was
a reasonable expectation that the complaining party would be subjected to
the same action again.’’ Loisel v. Rowe, supra, 233 Conn. 379. Our courts
have adopted as a third requirement that the question must have ‘‘some
public importance . . . .’’ Id., 382. As to the voluntary cessation exception,
although there is scant case law in Connecticut on this exception, our court’s
application of it is consistent with the underlying federal rationale, namely,
that the ‘‘found[ing] . . . principle [of the voluntary cessation doctrine is]
that a party should not be able to evade judicial review, or to defeat a
judgment, by temporarily altering questionable behavior.’’ (Internal quota-
tion marks omitted.) Boisvert v. Gavis, supra, 332 Conn. 139; see also part
II B of this opinion.
12
We note that, in Casey v. Lamont, supra, 338 Conn. 479, less than seven
months passed from the commencement of the parties’ action to this court’s
announced judgment in a brief, per curiam ruling after oral argument. See
id., 486, 488. Within that time, the parties tried the case, the trial court
issued a written decision, the plaintiffs appealed, and we accepted briefs
and heard oral argument. A full opinion by this court affirming the trial
court’s judgment in favor of the defendants followed approximately three
months after our per curiam ruling. See id., 481, 488.