Charles Clark, III v. Governor of New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2732
____________
CHARLES CLARK, III; SOLID ROCK BAPTIST
CHURCH, New Jersey not-for-profit corporation; BIBLE
BAPTIST CHURCH OF CLEMENTON, New Jersey not-for-
profit corporation; CHARLES CLARK, JR.;
PASTOR ANDREW REESE,
Appellants
v.
GOVERNOR OF THE STATE OF NEW JERSEY;
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY; PATRICK J. CALLAHAN, Superintendent of State
Police and State Director of Emergency Management in his
official capacities; JILL S. MAYER; THOMAS J. WEAVER;
CHIEF CHARLES GROVER; RICK MILLER; MILLARD
WILKINSON; RICHARD A. DE MICHELE; CHERYL R.
HENDLER COHEN
_________________
On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 1:20-cv-06805)
District Judge: Honorable Renee M. Bumb
_________________
Argued August 23, 2022
(Filed: November 28, 2022)
Before: Greenaway, Jr., Matey, and Rendell, Circuit Judges.
David C. Gibbs, Jr.
Jonathan D. Gibbs
Seth J. Kraus
GIBBS & ASSOCIATES
6398 Thornberry Court
Mason, OH 45040
Brian D. Tome [Argued]
REILLY MCDEVITT & HENRICH
3 Executive Campus
Suite 310
Cherry Hill, NJ 08002
Walter S. Zimolong, III
ZIMOLONG LLC
P.O. Box 552
Villanova, PA 19085
Counsel for Appellants
Matthew J. Berns [Argued]
Jeremy Feigenbaum
Robert J. McGuire
Daniel M. Vannella

Matthew J. Berns withdrew his appearance on October
31, 2022 after oral argument.
2
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
DIVISION OF LAW
25 Market Street
Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees Governor of New Jersey,
Attorney General of New Jersey, Patrick J. Callahan
George J. Botcheos
1202 Laurel Oak Road
Suite 208
Voorhees, NJ 08043
Counsel for Appellee Thomas J. Weaver, Charles
Grover, Cheryl R. Hendler-Cohen
__________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Once again, we have been asked to decide whether a
challenge to long defunct COVID-19 pandemic restrictions
presents a justiciable controversy.1 Because the in-person
gathering limits complained of here were rescinded over two
1
See Cnty. of Butler v. Governor of Pennsylvania, 8 F.4th 226(3d Cir. 2021).
3
years ago and it is absolutely clear their return could not
reasonably be expected to recur, we hold that the case is moot.
I. BACKGROUND
A.
In March 2020, New Jersey Governor Philip Murphy
took a series of measures to respond to the spread of COVID-
19. 2 In Executive Order (“EO”) 103, he declared a state of
0F
emergency pursuant to the Civilian Defense and Disaster
Control Act, N.J. Stat. Ann. § A:9-33, et seq., as well as a
public health emergency pursuant to the Emergency Health
Powers Act, N.J. Stat. Ann. § 26:13, N.J. Stat. Ann. These
declarations empowered the Governor to issue follow-up
orders addressing the pandemic, an authority he went on to use.
On March 21, Governor Murphy issued EO 107, which,
inter alia, prohibited in-person gatherings and ordered New
Jersey residents to “remain home or at their place of
residence,” except for certain approved purposes, such as an
“educational, political, or religious reason.” See Solid Rock
Baptist Church v. Murphy, 480 F. Supp. 3d 585, 589 (D.N.J.
Aug. 20, 2020) (citing N.J. Exec. Order 107 ¶ 2 (Mar. 21,
2
Governor Murphy is the lead Defendant-Appellee named in
this appeal, as he promulgated the relevant executive orders.
Eight other state and local officials responsible for interpreting
and enforcing the Governor’s orders are also named. In this
opinion, we refer to these individuals and the Governor
collectively as “Appellees” or “the State.”
4
2020)) (“Solid Rock I”). EO 107 excepted certain categories
of businesses deemed “essential,” including grocery and liquor
stores, which could continue to welcome any number of
persons (consistent with social distancing guidelines). Id. at
588–89. Violations of EO 107’s proscriptions were
enforceable by criminal prosecution for “disorderly conduct,”
N.J. Stat. Ann. § App. A:9-49. Further, the order granted
Defendant-Appellee Colonel Patrick Callahan, Superintendent
of the State Police, “discretion to make clarifications and issue
[related] orders[.]” N.J. Exec. Order 107 ¶ 6 (Mar. 21, 2020).
He exercised that power the same day EO 107 was signed,
declaring in Administrative Order No. 2020-4 that gatherings
of ten or fewer persons were presumptively permitted. 3 1F
Neither EO 107 nor AO 2020-4 contained an exception for
religious worship gatherings or other First Amendment-
protected activity.
B.
Plaintiff-Appellants are two New Jersey-based,
Christian congregations, Solid Rock Baptist Church and Bible
Baptist Church of Clementon, and their respective pastors,
Andrew Reese and (as co-pastors) Charles Clark III and
Charles Clark, Jr. Appellants believe that the Holy Bible
requires them to gather for in-person worship services.
Although both congregations switched to online services in the
wake of the Governor’s gathering restrictions, by late May
3
Colonel Callahan’s clarifying order would, itself, be adopted
in Governor Murphy’s Executive Order 142, on May 13, 2020.
5
2020 they had resolved to defy those rules and return to in-
person worship. After informing state authorities of their
intention to do so, the two churches held services with more
than ten persons in attendance. Local police, executive
officials, and prosecutors—several of whom are named
Defendant-Appellees 4—then participated in issuing and
2F
pursuing criminal complaints against the Pastors for their
violations of EO 107 and AO 2020-4.
Aggrieved by these actions, Appellants filed a
complaint in the United States District Court for the District of
New Jersey on June 3, 2020, naming Governor Murphy, New
Jersey Attorney General Gurbir Grewal, Superintendent
Callahan, and a slew of local officials as defendants. In the
complaint, Appellants “challenge[d] Executive Order No. 107
. . . as further clarified by Administrative Order No. 2020-4,”
App. 36, asserting that the orders discriminated against religion
by effectively closing churches while permitting secular
activities deemed “essential” to operate unimpeded, App. 37.
Appellants sought relief in the form of “a preliminary and
permanent injunction enjoining Defendants or their designees
or agents from enforcing the challenged Orders under any
‘social distancing’ requirements different from those
4
These include: Jill S. Mayer, Camden County Prosecutor for
Clementon Borough; Thomas J. Weaver, Mayor of Clementon
Borough; Charles Grover, Chief of Clementon Borough Police
Department; Rick Miller, Mayor of Berlin Borough; Millard
Wilkinson, Chief of Berlin Borough Police Department;
Richard A. De Michele, Prosecutor for Berlin Borough; Cheryl
R. Hendler Cohen, Prosecutor for Clementon Borough.
6
governing ‘essential’ businesses or services,” “a declaratory
judgment and preliminary and permanent injunction that the
challenged Orders are unconstitutional, on their face and as
applied,” and an award of costs, including attorneys’ fees.
App. 54. They did not seek damages.
C.
Less than a week after the complaint was filed, on June
9, 2020, Governor Murphy rescinded EO 107 in relevant part.
In EO 152, the Governor raised indoor gathering limits to fifty
persons or twenty-five percent room capacity (whichever was
less); the order also permitted outdoor religious gatherings
without any gathering limits, in recognition of the “particular[]
importan[ce]” of “religious services” to the functioning of
society. See N.J. Exec. Order 152 at 4, ¶ 2(f) (June 9, 2020)
(further excepting outdoor political gatherings, such as
“protests”). The same day, EO 153 rescinded EO 107’s general
stay-at-home requirement. N.J. Exec. Order 153 ¶ 11 (June 9,
2020).
EOs 152 and 153 presaged a trend; in the months that
followed, Governor Murphy progressively relaxed the
restrictions applicable to religious worship services. On June
22, 2020, EO 156 further loosened the restrictions applicable
to Appellants, raising the maximum number of persons
allowed at an indoor gathering to 100. N.J. Exec. Order 156 ¶
7
1 (June 22, 2020). 5 On September 1, EO 183 permitted
3F
religious gatherings of up to 150 persons. N.J. Exec. Order 183
¶ 4 (Sept. 1, 2020) (retaining a twenty-five-person limit for
generic secular gatherings). When COVID-19 case rates
trended sharply upward in November, gathering limits were
tightened for many contexts, but worship services were
excepted and retained the limits set forth in EO 183. See N.J.
Exec. Order 196 at 3, ¶ 1 (stating that “religious services” are
“constitutionally protected”).
On February 3, 2021, EO 219 increased the general
gathering limit to 150 persons or thirty-five percent capacity
and, on February 22, EO 225 set a new gathering limit for
indoor religious services of fifty percent room capacity, with
no numerical limit. See N.J. Exec. Order 219 ¶ 3 (Feb. 3,
2021); N.J. Exec. Order 225 at 3–4, ¶ 1 (Feb. 22, 2021) (“[A]t
certain times, restrictions on [religious worship] gatherings
should be less aggressive than restrictions on other
gatherings[.]”); see also N.J. Exec. Order 230 at 5 (Mar. 11,
2021) (“[R]estrictions on [religious worship] gatherings should
be less aggressive than restrictions on other gatherings[.]”).
Ultimately, on May 12, 2021, Governor Murphy issued
EO 239, which eliminated the remaining fifty percent capacity
gathering restriction applicable to religious worship. See N.J.
5
Although not every executive order discussed herein was
entered into the record below, we may take judicial notice of
their content. See, e.g., Union Cnty. Jail Inmates v. Di Buono,
713 F.2d 984, 988 n.4 (3d Cir. 1983) (taking judicial notice of
state executive orders).
8
Exec. Order 239 ¶ 6 (May 12, 2021) (conditioning worship
service attendance on the need for social distancing only). In
EO 239, the Governor explained that this policy adjustment
was driven by, among other things: (1) the “critical
knowledge” that had been gained regarding COVID mitigation
strategies; (2) “expanded access to testing, personal protective
equipment, and other materials”; (3) reduced infection and
hospitalization rates; and (4) the substantial progress in
vaccination rollout. See id. at 4. On May 24, 2021, EO 242
lifted all remaining numerical gathering limits for non-
religious contexts and rescinded the general social distancing
guideline for religious services. N.J. Exec. Order 242 ¶¶ 4–6
(May 24, 2021). On June 4, 2021, EO 244 ended the public
health emergency in the state. N.J. Exec. Order 244 ¶ 1 (June
4, 2021).
D.
Governor Murphy’s gradual loosening of restrictions
impacted Appellants’ parallel action in the District Court. On
August 8, 2020, the District Court denied Appellants’ motion
for a preliminary injunction—which had demanded permission
to worship in groups larger than ten persons—holding that the
very relief requested had been, “in effect, granted through the
enactment of Executive Order 156 [permitting 100 persons or
twenty-five percent capacity at all indoor gatherings].” Solid
Rock I, 480 F. Supp. 3d at 588. The District Court reasoned
that EO 156 thus mooted the claim for relief and denied
without prejudice the remaining claims, which are not relevant
to this appeal. Id. at 601.
9
One month later, Appellants filed an amended
complaint. Solid Rock II, 555 F. Supp. 3d at 57. Again, they
presented a narrow claim “challeng[ing] Executive Order
(“EO”) No. 107” as “further clarified by Administrative Order
(“AO”) No. 2020-4.” Id. at 56. The amended complaint
focused exclusively on the ten-person gathering limit created
by those Orders and demanded that said “challenged Orders”
be declared unconstitutional. Id. at 61. On August 16, 2021,
the District Court dismissed the amended complaint, holding
that Appellants’ claims were all moot. Id. at 62. The District
Court observed that “the contested EO 107 was rescinded by
several of Governor Murphy’s additional orders” and there had
been no limit on outdoor worship services since June 9, 2020;
thus, “there can be no dispute that the alleged unlawful
conduct—EO 107—has been terminated by Defendants.” Id.
at 61. Nor did the District Court find it sufficiently plausible
that such restrictions might return: “Plaintiffs present no
evidence to suggest that the State will again enact measures
restricting religious worship but worry about the possibility of
the State’s future response.” Id. (citing Cnty. of Butler v.
Governor of Pennsylvania, 8 F.4th 226, 233 (3d Cir. 2021)
(Jordan, J., concurring)). 6 Finally, the District Court held that,
4F
insofar as Appellants’ claims invited the District Court to
interfere in the ongoing prosecution of the Pastors, it would
6
The District Court also reasoned that intervening Supreme
Court precedent, Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) and Tandon v. Newsom, 141 S. Ct. 1294(2021), ensured that the State would not repeat the alleged
harms. We discuss the relevance of those cases in detail below.
10
abstain under the doctrine of Younger v. Harris, 401 U.S. 37(1971). Solid Rock II, 555 F. Supp. 3d at 57.
Appellants timely appealed.
E.
The COVID-19 pandemic and the State’s response
thereto have continued to evolve since this appeal was filed.
On December 15, 2021, the criminal cases against the
Appellant Pastors were voluntarily dismissed. 7 Over the fall
5F
and winter of 2021–22, the Delta and Omicron variants led to
a spike in the reported cases of COVID, prompting Governor
Murphy to declare a new public health emergency in EO 280,
issued on January 11, 2022. N.J. Exec. Order 280 at 8 (Jan. 11,
2022). Although more COVID orders followed in the
subsequent months, Governor Murphy refrained from
reimposing any gathering restrictions. On March 4, he lifted
the public health emergency once again in EO 292. N.J. Exec.
Order 292 ¶ 1 (Mar. 4, 2022). When case reports trended
7
As explained above, the prosecutions of the Pastors were
initiated in May 2020. At Oral Argument, the Panel was
informed that, for some uncertain period between initiation and
dismissal, the prosecutions were stayed at the request of the
parties. The record in the District Court reveals that the action
against Pastor Reese had been stayed by August 2020, at which
time a request to stay the parallel prosecution of the Clarks was
pending in state court. ECF Dkt. 20-cv-6805, Doc. No. 30.
Both matters had been stayed by April 2021, “in anticipation
of [the District Court’s ruling].” Doc. No. 74.
11
upward in May, no health emergency was declared, nor were
any gathering restrictions implemented. 86F
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction under
28 U.S.C. § 1331. We have appellate jurisdiction under 28
U.S.C. § 1291, regardless of whether the case is moot. See
Hartnett v. Pennsylvania State Educ. Ass’n, 963 F.3d 301, 305
(3d Cir. 2020). We review the District Court’s legal
conclusions de novo and its factual findings for clear error. Id.III. THE DISTRICT COURT CORRECTLY HELD THIS
CASE IS MOOT
Before us, Appellants contend that this case is not moot.
We disagree. The District Court correctly found that the
Governor’s partial rescission of the orders challenged in the
amended complaint ended any live controversy. Insofar as the
prosecutions animated a continuing dispute, their voluntary
dismissal leaves no escape from mootness. Moreover, it is
absolutely clear there is not a reasonable likelihood that the
8
See New Jersey COVID-19 Dashboard, NEW JERSEY
DEPARTMENT OF HEALTH,
https://www.nj.gov/health/cd/topics/covid2019_dashboard.sht
ml (last visited September 6, 2022); Valentine v. Collier, 960
F.3d 707, 708 (5th Cir. 2020) (taking judicial notice of state
COVID statistics).
12
restriction orders will be reimposed, so the voluntary cessation
doctrine does not save this case.
A.
The jurisdiction of the federal courts is limited to
“Cases” and “Controversies”. U.S. Const. art. III, § 2, cl. 1.
“Thus, [we] can entertain actions only if they present live
disputes, ones in which both sides have a personal stake.”
Hartnett v. Pennsylvania State Educ. Ass’n, 963 F.3d 301, 305
(3d Cir. 2020) (citing Summers v. Earth Island Inst., 555 U.S.
488, 492–93 (2009)). The doctrine of mootness ensures that
this condition remains “throughout the life of the lawsuit.” See
Freedom from Religion Found. Inc. v. New Kensington Arnold
Sch. Dist., 832 F.3d 469, 476 (3d Cir. 2016) (quoting Cook v.
Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993)); see also
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (“No matter
how vehemently the parties continue to dispute the lawfulness
of the conduct that precipitated the lawsuit, the case is moot if
the dispute ‘is no longer embedded in any actual controversy
about the plaintiffs’ particular legal rights.’” (quoting Alvarez
v. Smith, 558 U.S. 87, 93 (2009))).
If it is impossible for us to grant “any effectual relief
whatever to the prevailing party,” then the case is moot. See,
e.g., Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016)
(quoting Knox v. Serv. Emps., 132 S. Ct. 2277, 2287 (2012));
see also N.Y. State Rifle & Pistol Ass’n v. City of New York,
140 S. Ct. 1525, 1526 (2020) (holding that case became moot
when statutory amendments provided the relief sought); Trump
v. Hawaii, 138 S. Ct. 377 (2017) (Mem.) (holding that
13
challenge to expired provision of an executive order was
moot). Yet, one “recurring situation” in which we are reluctant
to dismiss a case as nonjusticiable—despite the absence of
ongoing conduct to enjoin—occurs where the defendant claims
the matter has become moot owing to his voluntary cessation
of the challenged action. Hartnett, 963 F.3d at 306–07; see
City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289
(1982) (“Such abandonment is an important factor bearing on
the question whether a court should exercise its power to enjoin
the defendant from renewing the practice, but that is a matter
relating to the exercise rather than the existence of judicial
power.”). In such cases, the defendant asserting mootness
bears a particularly “heavy burden”: it must be “absolutely
clear that the allegedly wrongful behavior could not reasonably
be expected to recur.” See, e.g., Fields v. Speaker of the Pa.
House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019)
(quoting Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.
No. 1, 551 U.S. 701, 719 (2007)). 97F
Here, Appellees contend that Governor Murphy’s
rescission of the relevant portions of EO 107 (which AO 2020-
4 purported to apply) has rendered this case moot. Indeed,
Appellees point out, indoor religious worship services in New
Jersey have not been subject to any capacity restrictions for
9
Further, “[w]hen a plaintiff seeks declaratory relief, a
defendant arguing mootness must show that there is no
reasonable likelihood that a declaratory judgment would affect
the parties’ future conduct.” Hartnett, 963 F.3d at 306
(citations omitted).
14
well over a year; so, “[t]here is simply no prospective relief left
for this Court to grant.” Appellees’ Br. at 13. Appellants reply
that the case appears moot only because of the Governor’s
unilateral rescission of his COVID orders, meaning that the
voluntary cessation doctrine imposes its “heavy burden” on
any claim of mootness. In turn, Appellees seek to meet that
burden by pointing to several factors, including the radically
changed public health situation and the lack of renewed
gathering restrictions during the Delta and Omicron waves.
Appellants also contend that the District Court
incorrectly saddled them with the burden of showing a
likelihood of recurrence. See Solid Rock II, 555 F. Supp. 3d at
61 (“Plaintiffs present no evidence to suggest that the State will
again enact measures restricting religious worship but worry
about the possibility of the State's future response.”). We agree
the District Court should have been clearer that the State, as
“the party claiming mootness,” bore the burden of
demonstrating that it was absolutely clear there was no
reasonable likelihood of recurrence. See Hartnett, 963 F.3d at
307 (citation omitted). As noted above, that burden is
especially heavy where the claim of mootness is based on
voluntary cessation of the challenged conduct. Id. at 307
(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000)). However, this error
does not impact our analysis as we review whether this case is
moot de novo. See Hamilton v. Bromley, 862 F.3d 329, 333
(3d Cir. 2017).
For the reasons discussed below, we conclude that the
controversy over Governor Murphy’s orders ended with their
15
rescission and Appellees have carried their burden of showing
that it is absolutely clear that recurrence is not reasonably
likely.
8F
1.
This case is facially moot. The relevant portions of EO
107 and AO 2020-4 were rescinded by Governor Murphy over
two years ago; thus, there is no “effectual relief whatsoever”
that this Court may grant in relation to those orders. See
Campbell-Ewald Co, 577 U.S. at 161. In the amended
complaint, Appellants chose to put their challenge narrowly
and identify those orders alone as the objects of their ire—
despite knowing that New Jersey’s COVID regime had already
begun to relax. The choice to confine the scope of litigation
meant the Governor’s first steps towards reopening rendered
Appellants’ amended complaint moot-on-arrival.
More broadly, the Governor’s orders ceased to disfavor
religion (even in relation to so-called “essential” businesses)
no later than February 22, 2021, when EO 225 ended that
suspect imbalance. Compare N.J. Exec. Order 225 ¶ 1 (Feb.
22, 2021) (raising indoor religious worship capacity limit to
fifty percent) with N.J. Exec. Order 122 ¶1(a) (Apr. 8, 2020)
(setting maximum “essential retail business” occupancy at fifty
percent). Even if we were to be charitable and read the
9F
amended complaint as raising a challenge to any COVID-
based gathering restriction on religious worship, then
Appellants still received the very relief sought in May 2021,
when the last gathering restrictions ended. See N.J. Exec.
Order 239 ¶ 6 (May 12, 2021) (limiting religious service
16
attendance based only on the need for social distancing); N.J.
Exec. Order 242 ¶ 10 (May 24, 2021) (rescinding EO 239’s
social distancing condition); Brach v. Newsom, 38 F.4th 6, 11
(9th Cir. 2022) (challenge to executive COVID orders was
moot after rescission of all such orders, where action had
sought injunctive and declaratory relief); Eden, LLC v. Justice,
36 F.4th 166, 169 (4th Cir. 2022) (same). It thus appears that
this Court cannot grant any effectual relief to Appellants, so
their claims are no longer justiciable. 1010F
2.
Nonetheless, Appellants insist the case remains
justiciable under the voluntary cessation doctrine, correctly
observing that “even if the government withdraws or modifies
a COVID restriction in the course of litigation, that does not
necessarily moot the case.” Tandon, 141 S. Ct. at 1297
(emphasis added). They argue that the State has failed to meet
its burden of showing that it is absolutely clear a return to
10
Appellants argue that their claim for attorneys’ fees has not
been vindicated, thus keeping the case alive. Not so. See, e.g.,
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998)
(“An ‘interest in attorney’s fees is . . . insufficient to create an
Article III case or controversy where none exists on the merits
of the underlying claim.’” (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 480 (1990))); Ivy Club v. Edwards, 943 F.2d 270,
276 (3d Cir. 1991) (“[A]n interest in attorneys’ fees does not
save a matter from mootness.”).
17
restrictions on religious worship is not reasonably likely, so we
ought to opine on the legality of the defunct orders.
Before facing that proposition head-on, we pause to
clarify the scope of our inquiry. For Appellants to prevail, we
need not conclude it is likely that the exact same restrictions
contained in EO 107 (and AO 20202-4) will return. At the
same time, it is not as though the chance of any future COVID-
related restrictions on Appellants’ religious exercise will do.
Rather, the hypothesized restriction must be “‘similar’ enough
to the [original restriction] to present substantially the same
legal controversy as the one presented” here. See, e.g.,
Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir. 2022)
(citing Ne. Fla. Chapter of Associated Gen. Contractors v. City
of Jacksonville, 508 U.S. 656, 662 n.3 (1993)). 1
Appellants’ amended complaint attacked an indoor
gathering limit of ten persons and observed that certain secular
activities were subject to more generous rules. Logically, then,
a reasonable likelihood that Governor Murphy will, say,
impose a ninety percent capacity limit on all indoor gatherings,
or create a restriction that treats churches more favorably than
grocery stores, would not suffice. We would not be
contemplating the resurrection of the current controversy, but
the creation of a new one, even if some legal issues recurred.
Thus, Appellees’ burden amounts to convincing us that it is
absolutely clear that it is not reasonably likely they will re-
impose severe in-person gathering restrictions applicable to
religious worship services, nor differential burdens favoring
18
secular over religious gatherings. Several considerations
persuade us this burden is met.11
First, as we have noted, mootness concerns itself with
whether the same legal controversy will recur. The
controversy here has two aspects to it: (1) whether the same
precise situation—the pandemic such as it presented itself in
2020 and 2021—will occur again; and (2) whether the
Governor will respond to that situation by imposing
restrictions similar enough to those he imposed in 2020 and
2021, such that it presents “substantially the same legal
controversy as the one presented” here. Resurrection Sch., 35
F.4th at 528. It is absolutely clear that neither of those aspects
are reasonably likely to recur. Regarding the likelihood that
the same pandemic conditions we faced in 2020-21 will repeat
themselves, it is hard to imagine that we could once again face
11
The dissent appears to require some definitive statement or
assurance from the Governor that, even if the same pandemic
conditions reoccurred, he would not impose restrictions on
religious gatherings. First, why would we require a
government official to engage in that kind of speculation based
on hypothetical facts? The dissent does not say. Second, and
more importantly, Appellees’ task is not to offer us absolute
certainty that the restrictions will not happen again; instead,
they must show it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.”
Fields, 936 F.3d at 161 (quoting Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007))
(emphasis added). Appellees have done precisely that.
19
anything quite like what confronted us then. Moreover, the
public health outlook has changed dramatically since the dark
days of March 2020, when the ten-person gathering limit was
implemented. Our knowledge of the virus and its vectors of
transmission, the rollout of vaccines, and the availability of
therapeutic responses to infection have totally changed the
nature of the disease itself, our understanding of it, and our
response to it. The accumulation of those changed
circumstances thus make the return of the same pandemic and
the same restrictions unlikely. See, e.g., Cnty. of Butler, 8 F.4th
at 230 12; id. at 233 (Jordan, J., concurring); Lighthouse
12F
12
In County of Butler v. Governor of Pennsylvania, 8 F.4th at
226, we held that a challenge to various Pennsylvania COVID
restriction orders was moot, id. at 232. That conclusion was
based on changed circumstances (1) on “the health front” and
(2) “on the legal front.” Id. at 230. Regarding the latter, we
explained that “[a]n amendment to the Pennsylvania
Constitution and a concurrent resolution of the
Commonwealth’s General Assembly now restricts the
Governor’s authority to enter the” sort of orders challenged in
the case. Id. Here, Appellants and the dissent contend
vigorously that Butler can be distinguished from the present
action, as New Jersey’s Governor still has the legal authority
to issue COVID restrictions. We disagree. Although the
change in the law was a factor in Butler, because we noted that
the Pennsylvania Health Secretary retained the authority to
issue comparable COVID orders and yet still held the case was
moot, the change was undoubtedly not a necessary condition
for our holding. Id. at 231 (“Plaintiffs have not carried [their]
burden [under the capable-of-repetition doctrine]. Plaintiffs
20
Fellowship Church v. Northam, 20 F.4th 157, 164 (4th Cir.
2021); see also Brach, 38 F.4th at 15 (same medical factors
suggest that school closures will not return). Governor
Murphy relied on these facts when he eliminated the remaining
gathering restrictions in May 2021. See, e.g., N.J. Exec. Order
239 at 1–7. As we have no reason to doubt the sincerity of that
justification, see Cnty. of Butler, 8 F.4th at 230–31 (describing
the presumption of good faith accorded government officials),
the Governor’s motivation further supports mootness: we are
generally less skeptical of voluntary cessation claims where the
change in behavior was unrelated to the relevant litigation, see
id. (holding voluntary cessation burden did not save the case
because the challenged orders were not terminated “as a
response to the litigation”); Hartnett, 963 F.3d at 306–07
(“[T]he defendant’s reason for changing its behavior is often
probative of whether it is likely to change its behavior again. .
. . [I]f the defendant ceases because of a new statute or a ruling
in a completely different case, its argument for mootness is
much stronger.”) (citations omitted). Thus, New Jersey’s
acknowledged medical progress militates against a reasonable
have pointed only to the fact that the Secretary of Health still
claims the power to issue orders of the sort before us now.”).
Our decision in Butler thus provides strong precedential
support for mootness here. True, as the dissent notes, we were
proceeding under the capable-of-repetition doctrine of
mootness, but the health factors we identified as supporting
mootness in Butler are still present here and point in the same
direction, yet the dissent offers no reason why the voluntary
cessation doctrine requires us to disregard those same health
factors when evaluating mootness in this case.
21
likelihood of a recurrence of the same pandemic and similar
future gathering restrictions.13
Second, Appellees can point to a track record since May
2021 of declining to reimpose gathering restrictions, even
during periods when COVID case rates increased
precipitously. The fact that such restrictions did not return
during the Delta and Omicron waves—nor during the less
extreme increase of May 2022—indicates that gathering
restrictions are reasonably unlikely to return as a COVID
mitigation measure. See, e.g., Eden, LLC, 36 F.4th at 171 (“If
there were any reasonable chance that the [West Virginia]
Governor might reimpose the safety measures at issue . . . then
those waves of increased infection should have been the
occasion for doing so. But they were not, and like other courts,
we see that as a powerful signal that whatever course the
COVID-19 pandemic takes, a return to restrictions like those
challenged here is highly unlikely.”) (citation and quotation
marks omitted); see also Brach, 38 F.4th at 14 (state’s
13
The dissent urges that this case should be controlled by West
Virginia v. EPA, 142 S. Ct. 2587 (2022). But that case is easily
distinguishable. There, the event that would trigger recurrence
of the challenged policy—i.e., the resolution of the litigation in
the government’s favor—could very easily happen, and the
government was unwilling to say it would not impose the
policy again if it did. See 142 S. Ct. at 2607. Here, the
triggering event of a similar pandemic is not likely to recur.
And to be clear, the discussion of mootness in West Virginia
consists of two paragraphs—another reason why the discussion
there cannot bear the weight the dissent places on it.
22
continuation of in-person school instruction during variant
wave supported mootness); Hertel, 35 F.4th at 530–31 (Moore,
J., concurring) (state’s decision to forgo school mask mandate
during variant waves supported mootness). Appellants have
even demonstrated a unique reluctance to tighten restrictions
on religious exercise. During the winter of 2020–21, when
most gathering contexts were subjected to decreased
occupancy limits, religious worship was excepted. See N.J.
Exec. Order 196 ¶ 1. This made sense given the Governor’s
expressed respect for religious freedom in his executive orders,
starting with EO 152 in early June 2020. 14 15
13F
14
Granted, the early executive orders did burden religious
worship gatherings, a fact we address further below. But the
point remains: if New Jersey officials were remotely likely to
reimpose some form of gathering restriction, then they would
have done so when case rates exploded because of the more
transmissible Delta and Omicron variants, but they did not.
15
Appellants point out that Governor Murphy has continued to
extend the state of emergency pursuant to the Disaster Control
Act, despite ending the public health emergency declared
under the Emergency Health Powers Act. See N.J. Exec. Order
292 at ¶ 1–2. The continuation of the emergency state means,
in turn, that Governor Murphy still has the authority to issue
COVID restrictions—a condition Appellants and the dissent
tell us defeats the State’s ability to meet its voluntary cessation
burden. But the mere fact that Governor Murphy retains the
power to reinstate the restrictions complained of does not mean
we have a live controversy. See, e.g., Rendell v. Rumsfeld, 484
F.3d 236, 242 (3d Cir. 2007) (“[S]tatutory changes that
23
Third, in the years since EO 107 was promulgated, there
has been significant, intervening Supreme Court precedent. In
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. at 63,
and Tandon v. Newsom, 141 S. Ct. at 1294, the Court
emphasized that “government regulations are not neutral and
generally applicable, and therefore trigger strict scrutiny under
the Free Exercise Clause, whenever they treat any comparable
secular activity more favorably than religious exercise,”
Tandon, 141 S. Ct. at 1296. This rule provided state officials
with crucial guidance in shaping any future COVID
restrictions, instructing them that such regulations must be
neutral and generally applicable in all but the narrowest of
circumstances. We believe there is no reasonable likelihood
that the State will tempt fate by reimposing restrictions
disfavoring religion in the teeth of this caselaw. See, e.g.,
Hawse v. Page, 7 F.4th 685, 693 (8th Cir. 2021) (“Even in the
hypothetical event that the County were to reinstate gathering
limits of fewer than ten persons, there is no reasonable
expectation that the County would flout the Supreme Court’s
discontinue a challenged practice are usually enough to render
a case moot, even if the legislature possesses the power to
reenact the statute after the law suit is dismissed.”) (internal
citations and quotation marks omitted); Bos. Bit Labs, Inc. v.
Baker, 11 F.4th 3, 10 (1st Cir. 2021) (“That the Governor has
the power to issue executive orders cannot itself be enough to
skirt mootness, because then no suit against the government
would ever be moot. And we know some are.”) (citations
omitted). Nor does the existence of a state of emergency show
that a return to gathering restrictions is reasonably likely. See,
e.g., Eden, LLC, 36 F.4th at 172 n.5.
24
intervening pronouncements on equal treatment between
religious exercise and comparable secular activity.”); Hertel,
35 F.4th at 529.16
Appellants argue that Governor Murphy has shown a
lack of respect for these precedents by failing to issue relaxed
COVID guidance fast enough after they were announced.
16
Appellants direct us to the Supreme Court’s holding in
Diocese of Brooklyn that rescission of COVID restrictions
might not moot a case where the defendant “regularly changes”
the regime applicable to the plaintiffs. 141 S. Ct. at 68. There,
New York had implemented a geographic risk classification
system that resulted in rapid changes—sometimes several in a
single week—to the capacity caps applicable to houses of
worship. Id. at 69 n.3. That situation kept the case alive
because petitioners lived under “a constant threat” that they
would again be subjected to a harsher classification. Id. at 67–
68. The instant case is plainly distinguishable. As detailed
above, Governor Murphy progressively loosened restrictions
on religious worship services starting in June 2020. The
regulations applicable to religious exercise have moved in only
one direction in New Jersey: towards increased freedom.
Appellants have not been subject to any numerical or capacity
limits on their worship gatherings since May 2021, well over a
year ago. There is thus no comparison to be made with the
New York system of sudden, inconsistent, and ongoing
changes that gave the Diocese of Brooklyn Court pause. See
Brach, 38 F.4th at 14–15. For the same reasons, we do not
believe that Appellees have the “track record of ‘moving the
goalposts’” that concerned the Court in Tandon. See 141 S. Ct.
at 1297.
25
When pressed at oral argument, however, Appellants’ counsel
conceded that the State’s regime already avoided strict scrutiny
under the rule of these cases by the time they had both been
decided. When Tandon came down in April 2021, religious
worship gatherings were subject to the same fifty percent
capacity limit applicable to essential businesses, and they had
been since February 2021.
Further, although the prosecution of the Pastors
continued for months after the Supreme Court had implicitly
cast doubt on the validity of EO 107’s proscriptions, we do not
take this as persuasive evidence that the Governor and other
high state officials are dismissive of precedent. As explained
above, it appears the prosecutions had been stayed when
Diocese of Brooklyn and Tandon were decided, and they would
remain so for some time after. It is thus not as though the State
was actively pressing for convictions in the face of ominous
caselaw. And we are hesitant to read the actions of municipal
prosecutors as reflecting directly on the views and intentions
of New Jersey’s highest officials. 17 Although the Attorney
14F
General does exercise ultimate supervisory authority over local
prosecutors (subject to the Governor’s oversight), there is no
unified chain-of-command, and he is not responsible for their
17
Several local officials are named Appellees, but the scenario
that Appellants fear is not that these individuals will sua sponte
reinstitute the prosecutions. Rather, at this stage of the
litigation, all mootness analysis centers on the Governor,
asking if state-wide restrictions will return via executive
orders. Local officials would presumably have no role in that
critical decision.
26
day-to-day functioning. See Yurick v. State, 184 N.J. 70, 79
(2005) (citations omitted). The delay in dismissing the
prosecutions thus reflects on the Governor and his cabinet only
indirectly.
Finally, even assuming a reasonable likelihood of some
COVID-based gathering restriction returning, it is implausible
that a challenge to that restriction would constitute the same
legal controversy as the one before us now. Given Diocese of
Brooklyn and Tandon, the State is now on notice that religious
exercise cannot be disfavored relative to comparable secular
activity, even if the latter is deemed an “essential service”
during emergency conditions. See Hertel, 35 F.4th at 529
(“The Supreme Court and other courts have since blocked any
number of [COVID orders], thereby providing concrete
examples of mandates and restrictions that violate the Free
Exercise Clause.”). We have no reason to doubt the sincerity
of the State’s assurance that it will adhere to these precedents
in the future. See Cnty. of Butler, 8 F.4th at 230–31 (citation
15
omitted). Consequently, any future restriction on religious
worship would likely omit the key legal issue raised in
Appellants’ amended complaint: that “[Appellees’] Orders are
not neutral laws of general applicability because they target
constitutionally protected activity . . . all the while providing
broad exemptions for many secular activities[.]” Amend.
Compl. ¶ 4.
In any event, we need not hypothesize further about
what a renewed COVID restriction regime in New Jersey
might look like. The point is that the very possibility of such
27
renewed restrictions is itself speculative, and an analysis of the
legal status of such hypothesized rules doubly-so.
16
*****
In sum, we are persuaded that this case is moot, as the
District Court correctly found. Appellants offer nothing more
than speculation to suggest that we have a live controversy
here. They invite us to hypothesize about future scenarios in
which (a) not only does the COVID-19 pandemic reach crisis
levels comparable to early-2020, but (b) New Jersey’s
executive officials will choose to ignore everything—both
legal and factual—we have learned since those early months
and bluntly reintroduce legally-suspect gathering restrictions
on religious worship. This will not do, and we will therefore
affirm. 18 19
17F 18F
18
Because the prosecutions of the Pastors were voluntarily
dismissed, we have no occasion to discuss Younger abstention.
The dismissed prosecutions do not serve as the sort of
“continuing injury” that might defeat mootness. See Hartnett,
963 F.3d at 308.
19
This conclusion addresses Appellants’ request for injunctive
relief as well their request for a declaratory judgment. As it is
absolutely clear there is no reasonable likelihood that EO 107
will be reinstated, there is likewise no reason to think the
declaratory judgment requested would affect the parties’
conduct. See Hartnett, 963 F.3d at 306.
28
MATEY, Circuit Judge, dissenting.
From the outbreaks of Athens, Byzantium, and London,
to the ravages of smallpox, SARS, and “Swine Flu,” plagues
punctuate the pages of history. When such a potent enemy
appears, it is natural to reach for every weapon, every tool,
anything that might turn the tide. Anything that ends the
emergency. But emergencies have long been “the pretext on
which the safeguards of individual liberty have been eroded—
and once they are suspended it is not difficult for anyone who
has assumed such emergency powers to see to it that the
emergency will persist.” 3 F.A. Hayek, Law, Legislation and
Liberty 124 (1979). Guarding against that threat is one reason
the permanent guarantees of our natural rights were recognized
in the Constitution. And examining whether those guarantees
have been honored or breached is part of the “virtually
unflagging obligation of the federal courts to exercise the
jurisdiction given them.” Colo. River Water Conservation Dist.
v. United States, 424 U.S. 800, 817 (1976).
The majority concludes that Governor Murphy’s choice
to place significant limitations on religious gatherings is no
longer a live controversy because those restrictions were
relaxed and eventually withdrawn. But the Governor changed
course unilaterally, not as the result of any legal force. Neither
Governor Murphy nor New Jersey’s Attorney General has ever
hinted, let alone assured, that the Governor will not reimpose
those same limits down the long COVID-19 road. And neither
acknowledge any boundaries on the Governor’s emergency
powers in the decisions of the Supreme Court, or even in the
Constitution. Caveats all insufficient to carry the “heavy”
burden, West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022), to
sidestep judicial review of these restrictions on religion. As the
longstanding limits on mootness do not relax for COVID-19
controversies, I would remand the matter to the District Court
and so respectfully dissent.
I.
Mootness means a once live dispute “is no longer
embedded in any actual controversy about the plaintiffs’
particular legal rights.” Alvarez v. Smith, 558 U.S. 87, 93
(2009). But how a suit became moot matters. If a savvy
defendant could simply say, “never mind,” and stop the
offending conduct long enough to win dismissal, the federal
courts would have little work to do. As a result, “[i]t is well
settled that a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to
determine the legality of the practice.” City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). Instead, we
ask whether the “allegedly wrongful behavior” has ended, or
merely paused. Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist. No. 1, 551 U.S. 701, 719 (2007). Understandably, any
answer is no more than a prediction. So we look at the
circumstances to see if the defendant “could reasonably be
expected to engage in the challenged behavior again.” Hartnett
v. Pa. State Educ. Ass’n, 963 F.3d 301, 306 (3d Cir. 2020).
Naturally, “the defendant’s reason for changing its behavior is
often probative.” Id. Did the defendant merely “yield[] in the
face of a court order” while still maintaining “that its conduct
was lawful all along”? Id. Or did the defendant stand down
“because of a new statute or a ruling in a completely different
case”? Id. at 307. Either way, it must be “absolutely clear” that
the same acts could not “reasonably be expected to recur.”
West Virginia v. EPA, 142 S. Ct. at 2607 (quoting Parents
Involved, 551 U.S. at 719). A “heavy” burden that, as the
2
majority explains, rests solely with the State. Maj. Op. at 12;
see also West Virginia v. EPA, 142 S. Ct. at 2607.
A.
Governor Murphy has not carried this formidable
burden. The Governor starts by saying he has already taken
back the limits on worship. But the Supreme Court has
answered that excuse, explaining that “even if the government
withdraws or modifies a COVID restriction in the course of
litigation,” it “does not necessarily moot the case.” Tandon v.
Newsom, 141 S. Ct. 1294, 1297 (2021). Governor Murphy then
adds there are no current plans to reimpose the capacity limits.
A carefully cabined answer more alarming than assuring. Next,
he recalls the urgency of COVID-19, reminding us this
“unprecedented pandemic” and “rapidly worsening crisis”
required a wide “range of social mitigation measures” in March
2020. Response Br. 5–6. Severe circumstances that left no
room to accommodate religious services—but not severe
enough to close liquor stores and pet shops. App. 85–86.
Finally, Governor Murphy points to his decision to unilaterally
“decline[] to reimpose indoor or outdoor capacity limits on
religious gatherings.” Response Br. 8. From which we must
infer that he and the New Jersey Attorney General consider the
First Amendment subordinate to their emergency powers,
powers they may or may not “decline” to exercise against
religious worship. They will let us all know when the time
arrives.
Respectfully, that is not how the voluntary cessation
doctrine works, a point emphasized by the Supreme Court
mere months ago in West Virginia v. EPA. There, the Court
considered whether a proposed rule to regulate carbon dioxide
3
fit within the authority provided by Congress. When faced with
a challenge, the Government announced plans to change course
and promised to promulgate a new regulation. A proposal, the
Government claimed, that “mooted the prior dispute.” 142 S.
Ct. at 2607. Not so, said the Court, because “the Government’s
mootness argument boils down to its representation that EPA
has no intention of enforcing” the old plan. Id. That does not
shoulder the “heavy burden” of showing “it is absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur.” Id. (citation omitted). Indeed, the
Government in that case “nowhere suggested that if the
litigation were resolved in its favor it would not” reimpose the
same challenged policy. Id. (cleaned up). Instead, it
“vigorously defend[ed]” the legality of its proposal. Id.
More so here. Governor Murphy does not suggest he
has no intention to reimpose limits on worship, only that he has
no current plans on the table. Not once has the Governor stated
he lacks the power to curtail religious freedoms for
emergencies. Nor has the New Jersey Attorney General ever
questioned the prosecution of Plaintiffs for violating the
challenged Executive Order, a case that lingered until briefing
began on this appeal.1 Or acknowledged the Supreme Court’s
decisions in Catholic Diocese and Tandon, which confirm that
1
Oral Argument at 22:50, Clark v. Governor of N.J., __
F.4th __ (3d Cir. 2022) (No. 21-2732),
https://www2.ca3.uscourts.gov/oralargument/audio/21-2732_
Clarkv.GovernorStateNJ.mp3. The Governor now tries to
distance himself from the county prosecutions. But a “county
prosecutor’s law enforcement function . . . remains at all times
subject to the supervision and supersession of the State.”
Yurick v. State, 184 N.J. 70, 79 (2005) (cleaned up).
4
emergencies do not permit state action to abandon the promise
of freely exercised faith. “Trust me,” is all Governor Murphy
serves up.
That, of course, is the one answer we have not accepted.
Take our recent decision in County of Butler v. Governor of
Pennsylvania, 8 F.4th 226 (3d Cir. 2021), cert. denied, 142 S.
Ct. 772 (2022), where we considered a challenge to
Pennsylvania’s COVID-19 orders closing businesses and
limiting secular gatherings. A moot challenge, we explained,
because the “Governor’s orders are no longer in effect and . . .
he has been stripped of his power to unilaterally act in
connection with this pandemic.” Id. at 230 (emphasis added).
Or consider our analysis in Hartnett. There, teachers
challenged a Pennsylvania statute allowing unions to collect
fees from nonmembers. While the lawsuit progressed, the
Supreme Court invalidated a similar statute, a change of law
the parties agreed made Pennsylvania’s law unenforceable.
That, we held, satisfied the mootness exception. We explained
that once the Supreme Court spoke, “the unions immediately
stopped collecting agency fees.” Hartnett, 963 F.3d at 307.
And the unions “conceded that Pennsylvania’s agency-fee
arrangement violates the First Amendment and have forsworn
collecting fees from nonmembers.” Id. (emphasis added). The
holdings in Butler and Hartnett both turn on external legal
constraints on the defendant’s prior conduct, where “the claims
became moot for reasons outside the parties’ control.” Butler,
8 F.4th at 232. Whether that new law is decisional, statutory,
or constitutional, it is strong evidence that informs our focus
“on whether the defendant made that change unilaterally and
so may ‘return to [its] old ways’ later on.” Hartnett, 963 F.3d
at 307 (quoting City of Mesquite, 455 U.S. at 289 n.10)
(alteration in original).
5
Nothing of the sort has occurred here: no concessions of
illegality, no foresworn future restrictions, no divesting of
power. Governor Murphy retains his statutory authority to act
at his pleasure. The state’s Constitution has not been altered,
and no court, including ours, has stepped up to consider the
rights reserved by the First Amendment. Respectfully, that has
never been enough to evade the powers vested in the judiciary
by Article III. And I see three problems that will likely follow
our holding today.
B.
First, while the majority invokes the old mootness test,
it applies something softer. The majority points out that it must
be “absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” Parents Involved, 551
U.S. at 719 (emphasis added). But the majority only recites this
standard, rather than rigorously holding the Governor to his
“formidable burden,” Hartnett, 963 F.3d at 307, permitting
him to dismiss, not defend, his decisions. Instead, the majority
rests on its doubt “that the State will tempt fate by reimposing
restrictions disfavoring religion.” Maj. Op. at 21. That flips the
holdings of West Virginia v. EPA and a host of prior decisions,2
recasting the heavy burden of absolute certainty with the light
2
What the majority points to as a distinction between
this case and West Virginia v. EPA is in fact a similarity. The
majority notes that the Court there did not find the dispute moot
in part because “the government was unwilling to say it would
not impose the policy again.” Maj. Op. at n.13. I agree. And
the Government here has been similarly coy.
6
weight of mere skepticism and setting a much lower hurdle for
the Governor to clear.
Second, the majority repeats the error of the District
Court and conflates two separate mootness exceptions that
carry two distinct burdens. On the one hand, there are cases in
which the plaintiff’s alleged injury has disappeared through no
action of the defendant. That will make the matter moot unless
the plaintiff can show the duration of the challenged action is
too short to be fully litigated and “there is a reasonable
expectation that the same complaining party will be subjected
to the same action again.” United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1540–41 (2018) (citation omitted). This is the
“capable of repetition, yet evading review” exception. Id. at
1540 (citation omitted). And the burden of showing the issue
is “capable of repetition” rests only with the plaintiff.
Voluntary cessation, on the other hand, places that “heavy
burden” on the defendant. West Virginia v. EPA, 142 S. Ct. at
2607.
The majority yokes the wrong party.3 The opinion
repeatedly looks to the facts in Butler. But that case involved
the “capable of repetition” exception, not voluntary cessation.
And the former “applies only in exceptional situations,” where
the burden rests with the plaintiff. Butler, 8 F.4th at 230–31
(citation omitted). That allocation makes all the difference. The
plaintiffs, we explained, could not carry their burden because
Pennsylvania changed the law to prevent the same measures
3
Indeed, the majority explicitly shifts the burden from
the Governor to the challengers, concluding that “Appellants
offer nothing more than speculation to suggest that we have a
live controversy here.” Maj. Op. at 24.
7
from returning. Id. at 232. Nor did they offer anything to rebut
the Commonwealth’s representations “that the public health
landscape has so fundamentally changed” that future policies
would not resemble the past. Id. at 231. A point, we noted,
“[p]laintiffs here have given us little reason to disbelieve.” Id.
Here, of course, there is every reason. That is the
purpose of the heavy burden against accepting voluntary
cessation claims on no more than the moving party’s say-so.
Perhaps a presumption of governmental good-faith has some
application in “capable of repetition” cases challenging state
actions like Butler; the burden is already on the plaintiff who
must offer facts showing “a reasonable expectation . . . [they]
will be subject to the same action again.” Id. at 231 (citation
omitted). Extending that “presumption,” if it truly exists,4 to
voluntary cessation would give governmental actors the keys
to get out of almost any lawsuit simply by citing their own good
intentions. The result in West Virginia v. EPA confirms that is
not correct.
4
Butler relies on Marcavage v. National Park Service,
666 F.3d 856, 861 (3d Cir. 2012) for the proposition that “[w]e
generally presume that government officials act in good faith.”
Butler, 8 F.4th at 230. Language Marcavage borrowed from
Bridge v. United States Parole Commission, 981 F.2d 97, 106
(3d Cir. 1992). But Bridge took that concept from the
dissenting opinion in Ward v. Rock Against Racism, 491 U.S.
781 (1989), neglecting, it seems, to note that it is a dissenting
view. Neither Bridge, a case about parole eligibility
calculations, nor Ward, a First Amendment challenge to noise
permits, involves mootness. All making for a most shaky
foundation, one we should not casually extend into questions
about Article III.
8
Finally, Plaintiffs, like the almost nine million residents
of New Jersey, still do not know whether the First Amendment
protects their religious obligations and faith tenets, even
though at the Founding, “the right to religious liberty . . . was
universally said to be an unalienable right.” Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1900 (2021) (Alito, J.,
concurring) (citation omitted); see also Vincent Phillip Muñoz,
Religious Liberty and the American Founding 229 (2022)
(“[T]he Founders declared religious liberty to be an inalienable
natural right.”). A chilling prospect because Executive Order
107 treats religious exercise worse than comparable secular
activity. Comparability “must be judged against the asserted
government interest that justifies the regulation at issue,” and
is “concerned with the risks various activities pose, not the
reasons why people gather.” Tandon, 141 S. Ct. at 1296
(citation omitted). In Tandon, the Court found “at-home
religious exercise” comparable to retail shopping. Id. at 1297.
Here, Governor Murphy’s “severe in-person gathering
restrictions,” Maj. Op. at 16, accommodated alcohol, protected
pets, and honored home improvement, but found spaces for
safe worship non-essential. That imposed “differential burdens
favoring secular over religious gatherings,” id., demanding the
Governor show a narrowly tailored restriction serving a
compelling state interest. See Roman Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020).
It is unclear why Governor Murphy urgently needs to
shut down synagogues, churches, and mosques en masse while
finding room to accommodate a laundry list of businesses. The
majority implies answering that question can wait,
rationalizing that it is “hard to imagine” a health emergency
presenting the State an opportunity to reimpose the ban on
9
religious worship. Maj. Op. at 17. But no lively imagination is
needed to conjure up future competitions between public
health and religious liberty given the volatility of respiratory
viruses,5 the increased probability of future pandemics,6 and
the routine declaration of “emergencies” by Governor
Murphy.7 I would take the opportunity to provide an answer
now, giving the people of New Jersey, and its representatives,
the guidance they are entitled to under the Constitution.
II.
COVID-19 did not change the standards for mooting a
case or controversy arising under the laws of the United States.
Governor Murphy elected to use an emergency power to
eliminate public religious worship. He has not carried the
5
See, e.g., Jamie Crow, Telltale Signs of a
‘Tripledemic’, Johns Hopkins Coronavirus Resource Center
(Nov. 3, 2022), https://coronavirus.jhu.edu/from-our-experts/
telltale-signs-of-a-tripledemic (“[W]e’re starting to see an
uptick in some [COVID] variants that are probably among the
most immune-evasive variants that we’ve seen.”).
6
“Based on the increasing rate at which novel
pathogens such as SARS-CoV-2 have broken loose in human
populations in the past 50 years, . . . the probability of novel
disease outbreaks will likely grow three-fold in the next few
decades.” Michael Penn, Statistics Say Large Pandemics Are
More Likely Than We Thought, Duke Global Health Institute
(Aug. 23, 2021), https://globalhealth.duke.edu/news/statistics-
say-large-pandemics-are-more-likely-we-thought.
7
Some eighteen since 2018. See Executive Orders, State
of New Jersey, https://nj.gov/infobank/eo/056murphy/
approved/eo_archive.shtml (last visited Nov. 22, 2022).
10
formidable burden of showing, with absolute clarity, there is
no reasonable probability he will not do so again. Respectfully,
we should decide whether the Governor’s actions satisfy the
First Amendment before the next emergency arrives.
11