Emma Lynn Baker v. Watervliet Public Schools ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
EB, Minor, by Next Friend STACEY NICOLE UNPUBLISHED
BAKER, STACEY NICOLE BAKER individually, May 4, 2023
JB and NB, Minors, by Next Friend STEFANIE
BRULE, STEFANIE BRULE individually, TJR,
Minor, by Next Friend ANGELA ROBERTS,
ANGELA ROBERTS individually, ES, Minor, by
Next Friend KAREN GARLANGER, and KAREN
GARLANGER individually,
Plaintiffs-Appellants,
v No. 361206
Berrien Circuit Court
WATERVLIET PUBLIC SCHOOLS, RIC LC No. 2022-000014-CZ
SEAGER, WATERVLIET BOARD OF
EDUCATION, LAKESHORE PUBLIC SCHOOLS,
GREG EDING, LAKESHORE PUBLIC SCHOOL
BOARD OF EDUCATION, ST. JOSEPH PUBLIC
SCHOOLS, JENNY FEE, and ST. JOSEPH PUBLIC
SCHOOLS BOARD OF EDUCATION,
Defendants-Appellees.
Before: SHAPIRO, P.J., and REDFORD and YATES, JJ.
PER CURIAM.
Plaintiff parents—individually and as next friends of their children who attend Watervliet,
Lakeshore, or St. Joseph Public Schools—have challenged mask requirements implemented by the
respective school districts to prevent the spread of COVID-19. The school districts rescinded their
mask mandates in February 2022 while this case was pending in the trial court. Shortly thereafter,
the trial court dismissed the case as moot. On review, we affirm that ruling.
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I. FACTUAL BACKGROUND
Plaintiffs challenge the school districts’ mask policies that were implemented in the fall of
2021. The Berrien County Health Department rescinded its mask policy on September 29, 2021,
but defendants decided to maintain their own mask requirements for students. Plaintiffs filed suit
in January 2022. In February 2022, defendants rescinded their mask requirements and made masks
optional for students, staff, and visitors. The decisions to rescind the mask requirements coincided
with improving COVID-19 circumstances and new guidance from the Department of Health and
Human Services (DHHS)—issued on February 16, 2022—that lifted a masking advisory in indoor
public settings, including schools. Defendants thereafter moved for summary disposition, raising
the issue of mootness. On April 8, 2022, the trial court issued an 11-page opinion dismissing the
entire case “without prejudice on grounds of mootness only, rendering a determination . . . of the
remaining issues raised by the parties unnecessary.” Plaintiffs then filed this appeal as of right.
II. LEGAL ANALYSIS
Plaintiffs contend that the trial court erred by dismissing the case as moot because, although
the mask mandates are no longer in effect, the school districts do not concede the wrongfulness of
their conduct in adopting those policies and there remains a constant threat that the school districts
will reinstitute mask requirements. Therefore, plaintiffs insist that the school districts’ voluntary
cessation of their mask policies does not render the case moot. Plaintiffs also argue that mootness
should not apply because the issues in this case pose questions of public significance and that those
issues are likely to recur, yet evade judicial review. We disagree.
Issues of mootness “are questions of law that are reviewed de novo.” Adams v Parole Bd,
340 Mich App 251, 259; ___ NW2d ___ (2022). As we recently stated in considering a challenge
to a mask mandate:
Generally, this Court does not address moot questions or declare legal principles
that have no practical effect in a case. Mootness occurs when an event has occurred
that renders it impossible for the court to grant relief. An issue is also moot when
a judgment, if entered, cannot for any reason have a practical legal effect on the
existing controversy. [Flynn v Ottawa Co Dep’t of Pub Health, ___ Mich App ___,
___; ___ NW2d ___ (2022) (Docket No. 359774); slip op at 4 (quotation marks and
citation omitted).]
Mootness, however, is not an inflexible doctrine, and there are several exceptions to the general
rule. Turunen v Dir of Dep’t of Nat’l Resources, 336 Mich App 468, 480; 971 NW2d 20 (2021).
Specifically, a moot issue will be reviewed if the issue is one of public significance that is
“likely to recur, and yet likely to evade judicial review.” Flynn, ___ Mich App at ___; slip op at 4.
Also, a moot issue may be reviewed under the voluntary cessation doctrine, which provides:
“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of
power to hear and determine the case, i.e., does not make the case moot. A
controversy may remain to be settled in such circumstances, e.g., a dispute over the
legality of the challenged practices. The defendant is free to return to his old ways.
This, together with a public interest in having the legality of the practices settled,
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militates against a mootness conclusion.” [Ed Subscription Serv, Inc v American
Ed Servs, Inc, 115 Mich App 413, 430; 320 NW2d 684 (1982), quoting United
States v W T Grant Co, 345 US 629, 632; 73 S Ct 894; 97 L Ed 1303 (1953).]
Under the voluntary cessation doctrine, “[t]he case may nevertheless be moot if the defendant can
demonstrate that there is no reasonable expectation that the wrong will be repeated.” W T Grant
Co, 345 US at 633 (quotation marks and citation omitted).
The school districts have rescinded their masking requirements, so plaintiffs’ challenges to
the mask mandates are moot because there is no meaningful relief we could grant and any judgment
from this Court would have no practical effect on any existing controversy. See Flynn, ___ Mich
App at ___; slip op at 4. The question remains, however, whether the merits of the case should be
reviewed under the voluntary cessation doctrine or because the issues are likely to recur, yet evade
judicial review. Accordingly, at plaintiffs’ urging, we shall determine whether either one of those
exceptions to the general rule of mootness should be invoked in this case.
A. VOLUNTARY CESSATION
In considering voluntary cessation as a basis for reaching the merits in this case, we observe
that the school districts do not concede that they lack the authority to require masks in school, nor
do the school districts furnish any assurances that they will not reimpose a masking requirement if
they deem that mandate necessary. To the contrary, the school districts have vigorously defended
their authority to impose mask mandates. We also recognize that the issue presented is potentially
one of public interest. These circumstances lend support to the argument that the school districts’
voluntary cessation of their masking requirements should not render moot the controversy in this
case regarding the school districts’ power.
On the other hand, and more compelling in our view, the facts of this case do not indicate
that the school districts withdrew their masking requirements in response to plaintiffs’ lawsuit. On
February 16, 2022, the DHHS issued guidance “expiring the Public Health Advisory on Masking
in Indoor Public Settings, including school settings.” In lifting the advisory, the DHHS relied upon
“[c]urrent case rates and hospitalizations, and increased access to vaccines, testing and therapies”
as evidence that Michigan was in a “post-surge recovery phase” in which there was no “immediate
resurgence” predicted. Shortly thereafter, during the same month, in the midst of the improving
COVID-19 conditions, and consistent with the DHHS’s updated guidance, the school districts
rescinded their mask mandates, suggesting that the school districts acted in response to the new
guidance from the DHHS and the evolving COVID-19 situation, rather than in response to
plaintiffs’ lawsuit. Cf. Resurrection Sch v Hertel, 35 F4th 524, 529 (CA 6, 2022).1 There is a
presumption of good faith by governmental actors, see Brach v Newsom, 38 F4th 6, 12-14 (CA 9,
2022), and the facts of this case do not rebut that presumption. Therefore, the “sincerity” of the
1
Although nonbinding, decisions of lower federal courts may be considered for their persuasive
value. In re Estate of Vansach, 324 Mich App 371, 388 n 8; 922 NW2d 136 (2018).
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school districts’ justification supports a finding of mootness. See Clark v Governor of New Jersey,
53 F4th 769, 778 (CA 3, 2022).
To be sure, the public-health environment regarding COVID-19 could change in the future,
and the school districts staunchly defend their power to respond to such a health crisis as necessary,
including with masking requirements. Although we are aware of this possibility, we nevertheless
conclude that the likelihood that the school districts will reinstitute mask mandates in response to
the evolving COVID-19 situation is speculative. See Brach, 38 F4th at 14.
B. LIKELY TO RECUR, YET EVADING REVIEW
We conclude that the “likely to recur, and yet likely to evade judicial review” exception to
the general rule of mootness does not apply. To determine whether review of an issue is warranted
under that exception, we must consider whether the issue “(1) is of public significance, (2) is likely
to recur, and (3) may evade judicial review[.]” Gleason v Kincaid, 323 Mich App 308, 315; 917
NW2d 685 (2018). There must exist “a reasonable expectation that the publicly significant alleged
wrong will recur yet escape judicial review[.]” Id.The school districts’ authority to impose mask requirements is potentially an issue of public
significance, see Flynn, ___ Mich App at ___; slip op at 4, but there is no reasonable expectation
that the alleged wrong will recur, yet escape review. At this juncture, the likelihood of the school
districts reinstating a mask mandate is speculative. Also, if one of the school districts again
imposes a mask requirement, there is no reason to believe that the duration of the mask mandate
will be so short as to evade judicial review. Weinstein v Bradford, 423 US 147, 149; 96 S Ct 347;
46 L Ed 2d 350 (1975) (considering whether the “challenged action was in its duration too short
to be fully litigated prior to its cessation or expiration”). Mask mandates during the COVID-19
pandemic were in place for many months, affording sufficient time for judicial review should the
matter arise again. See, e.g., Gunter v North Wasco Co Sch Dist Bd of Ed, 577 F Supp 3d 1141,
1156 (D Or, 2021) (reviewing merits of challenges to a mask mandate that was in effect for several
months). More importantly, this Court has recently addressed the merits of a challenge to a mask
mandate, see Flynn, ___ Mich App at ___; slip op at 4-7, leaving little doubt that this Court will
take up such a challenge to a mask mandate instituted in the future. In that respect, mask mandates
in Michigan have not evaded review by our courts, nor will they do so in any subsequent pandemic.
Affirmed.
/s/ Douglas B. Shapiro
/s/ James Robert Redford
/s/ Christopher P. Yates
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