The PEOPLE'S FREEDOM ENDEAVOR & Another v. COMMISSIONER OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION & Others. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-340
THE PEOPLE'S FREEDOM ENDEAVOR & another1
vs.
COMMISSIONER OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY
EDUCATION & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, an unincorporated association and a
nonprofit corporation with members who have children in various
public schools throughout the Commonwealth, appeal a Superior
Court judge's order denying their request for a preliminary
injunction prohibiting the Department of Elementary and
1 Children's Health Rights of Massachusetts, Inc. Other
plaintiffs named in the six complaints that were consolidated in
the Superior Court are not before us in this appeal.
2 Board of Elementary and Secondary Education, Department of
Elementary and Secondary Education, Andover public school
district, Attleboro public school district, Cambridge public
school district, Carver public school district, city of
Cambridge, Easton public school district, Franklin public school
district, Hingham public school district, Northborough public
school district, Northborough-Southborough regional public
school district, Sandwich public school district, Southborough
public school district, Tewksbury public school district,
Tyngsborough public school district, and West Bridgewater public
school district.
Secondary Education (department), the Board of Elementary and
Secondary Education (board), and various public school districts3
from requiring most public school students to wear masks while
attending public schools indoors.4 Concluding that the issues
are moot and the circumstances do not warrant reaching the
merits, we dismiss the appeal.5
Background. On August 25, 2021, in response to health and
safety concerns due to the COVID-19 pandemic, the department
issued a Statewide school mask mandate requiring all public
school students at least five years old and all staff "to wear
masks indoors" that "cover an individual's nose and mouth."6
Several local school districts also issued mask mandates. The
Statewide school mandate expired on February 28, 2022, and there
is no indication in the record that any of the defendant school
3 The school districts mentioned in note 2, supra, plus the
Bridgewater-Raynham regional school district, Dover public
school district, Dover-Sherborn regional school district,
Sherborn public school district, and town of Dover.
4 Children's Health Rights of Massachusetts also sought a
preliminary injunction against the city of Cambridge,
challenging Cambridge's city-wide indoor mask mandate requiring
members of the public to wear masks while inside public venues.
5 The city of Cambridge argues that Children's Health Rights of
Massachusetts lacked standing because it failed to allege any
member harmed by the city's mask order. Although it appears
that this argument has force, we do not reach it because we
decide this appeal on mootness grounds.
6 The city of Cambridge implemented its mask mandate on September
3, 2021.
2
districts or municipalities still have local mask mandates in
place.7 The mandates triggered a series of lawsuits.
On September 20, 2021, the People's Freedom Endeavor and
the Family Freedom Endeavor, Inc., jointly filed a complaint in
Hampden Superior Court on behalf of certain parents of school-
aged children in Massachusetts seeking to enjoin the department
from implementing the mask requirement. Over the next two days,
additional plaintiffs filed five similar lawsuits that also
included related local school mask requirements. The Children's
Health Rights of Massachusetts filed complaints in Norfolk,
Bristol, and Plymouth Superior Courts. The fourth case was
brought in Middlesex Superior Court on behalf of eleven parents
and their children. Citizens for Medical Freedom, Inc., a
nonprofit corporation, brought the fifth suit in Norfolk
Superior Court.
The claims against the department and the board alleged
that the State lacked authority to issue the Statewide school
mask requirement and that the Statewide and local mask
requirements were "preempted" by statutory provisions conferring
authority on the Department of Public Health to regulate
infectious diseases. The complaints that included local towns
and municipalities also alleged that the Statewide mask
7 The city of Cambridge mask order expired on March 13, 2022.
3
requirement and local requirements violate parents' right to due
process and natural rights under the Massachusetts Constitution
by interfering with their ability to make "healthcare decisions"
and otherwise direct the upbringing of their children.
On October 12, 2021, all six actions were consolidated for
hearing in Hampden Superior Court. On November 16, 2021, a
Superior Court judge denied plaintiffs' collective motions for
preliminary injunction, finding that plaintiffs failed to
demonstrate that they were likely to succeed on the merits of
their claims or that they had suffered or would suffer
irreparable harm. The People's Freedom Endeavor, Children's
Health Rights, and Citizens for Medical Freedom filed timely
notices of appeal.8 Children's Health Rights and Citizens for
Medical Freedom also filed petitions under G. L. c. 231, § 118,
first par., seeking review of the judge's decision by a single
justice of this court. On January 25, 2022, the single justice
denied the petition in a detailed memorandum and order
addressing all the parties' substantive claims. The single
justice ultimately determined that the plaintiffs failed to
8 Neither the Family Freedom Endeavor nor the individual parent
plaintiffs appealed. Although Citizens for Medical Freedom
filed a notice of appeal, it failed to file a brief and
accordingly is not a party to the present appeal. See Mass.
R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019).
4
sustain their burden to show a likelihood of success on the
merits.
Discussion. 1. Mootness. "[L]itigation is considered
moot when the party who claimed to be aggrieved ceases to have a
personal stake in its outcome" (citation omitted). Lynn v.
Murrell, 489 Mass. 579, 582 (2022) (challenge to emergency
executive orders imposing Statewide mask mandate in public
places became moot when orders rescinded). "A party no longer
has a personal stake in a case where a court can order no
further effective relief" (quotations and citation omitted).
Id. We agree with the defendants' argument that this appeal
should be dismissed as moot. The State and local mask
requirements that the plaintiffs seek to enjoin are no longer in
effect. Thus, there is nothing to enjoin.
b. Discretion to decide the issues. In reaching our
conclusion, we reject the plaintiffs' argument that we should
exercise our discretion to decide the issues despite their
mootness. "[D]ismissal for mootness may be inappropriate if the
situation presented is capable of repetition, yet evading
review" (quotation and citation omitted). Boelter v. Selectmen
of Wayland, 479 Mass. 233, 238 (2018). "In such circumstances,
we do not hesitate to reach the merits of cases that no longer
involve a live dispute so as to further the public interest"
(citation omitted). Id. Among the factors we consider in
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determining whether to decide a moot issue are the likelihood
that the question will "arise again in similar factual
circumstances" and, if so, whether "appellate review could not
be obtained before the recurring question would again be moot."
See Ott v. Boston Edison Co., 413 Mass. 680, 683 (1992).
Here, the plaintiffs' argument that the department's
extensions of its original order, as it faced an ongoing and
acute public health crisis in 2021, presages a reinstatement of
mask mandates now or in the future "overlooks the changes in
both the factual and legal landscape of the COVID-19 pandemic."
Lynn, 489 Mass. at 585. In Lynn, the Supreme Judicial Court
(SJC) noted that the contested emergency orders were "issued to
address an earlier variant of COVID-19 at a time when the State
had a limited number of protective measures at its disposal[,
but] [m]easures now available include multiple types of COVID-19
tests, vaccines, and COVID-19 treatments that can be
administered at home." Id. The SJC reasoned that "[t]hese
changes suggest that the factual underpinnings of the dispute
have so changed or are likely to so change as to make an
appellate decision a useless and inappropriate exercise"
(quotations and citation omitted). Id. As we analyze the
potential resurrection of mask requirements in public schools,
yet another year removed from the onset of COVID-19, that
6
reasoning applies with even more force.9 It is indisputable that
the current COVID-19 landscape bears little, if any, resemblance
to the circumstances existing when the Statewide public school
mask mandate was issued in August 2021. We therefore conclude
that the plaintiffs' contention that there is "a likelihood that
this [mask mandate] policy should return . . . at the whims of
[the department]" is no more than "[s]peculative fear of future
litigation," Bronstein v. Board of Registration in Optometry,
403 Mass 621, 627 (1988).
Although the plaintiffs do not specifically argue that the
relevant issues, if capable of repetition, likely would evade
review before again becoming moot, we pause to reiterate the
SJC's response to this concern in nearly identical circumstances
involving the broader Statewide mask mandate for all public
places. See Lynn, 489 Mass. at 580. To date, questions
regarding COVID-19 have not been "'evanescent' . . . like ones
related to pregnancy, commitment orders, and student suspension"
9 We note the recent Department of Health and Human Services
(HHS) announcement that the Federal public health emergency for
COVID-19 will expire on May 11, 2023. The HHS press release
indicated that "since the peak of the Omicron surge at the end
of January 2022: [d]aily COVID-19 reported cases are down 92%;
COVID-19 deaths have declined by over 80%; and [n]ew COVID-19
hospitalizations are down nearly 80%." U.S. Department of
Health and Human Services, Fact Sheet: COVID-19 Public Health
Emergency Transition Roadmap (Feb. 9, 2023),
https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-
public-health-emergency-transition-roadmap.html.
7
(citation omitted). Id. at 587. "Thus, it is impossible to
posit whether the circumstances that might spur a new Statewide
[public school] mask mandate, if they ever should arise, would
not last long enough to enable appellate review of a challenge
to such a mandate." Id.
In sum, where, as here, the underlying issue "has become a
'theoretical dispute'[,] . . . is not apt to evade review if it
arises again[,] . . . or is not likely to recur," Lockhart v.
Attorney Gen., 390 Mass. 780, 784 (1984), there is no basis for
reaching the merits. See Branch v. Commonwealth Employment
Relations Bd., 481 Mass. 810, 815-818, 818 n.17 (2019), cert.
denied, 140 S. Ct. 858 (2020).
Conclusion. The appeals of the People's Freedom Endeavor
and the Children's Health Rights of Massachusetts, Inc., are
dismissed, not on the merits but because they are moot. For the
same reason, the order of the Superior Court judge denying
injunctive relief is vacated. The case is remanded to the
8
Superior Court for such further proceedings, if any, as may be
appropriate.10
So ordered.
By the Court (Englander,
Grant & Brennan, JJ.11),
Clerk
Entered: April 4, 2023.
10 Because we do not reach the merits, the local districts'
request for appellate attorney's fees and costs is denied.
11 The panelists are listed in order of seniority.
9