In Re COVID-Related Restrictions on Religious Services

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE COVID-RELATED )
RESTRICTIONS ON RELIGIOUS )
SERVICES ) C.A. No. N23C-01-123 MAA
)
Submitted: May 31, 2023
Decided: August 28, 2023
Upon Defendant Governor John Carney's Motion to Dismiss:
GRANTED.
OPINION
Stephen J. Neuberger, Esquire (Argued), and Thomas S. Neuberger, Esquire, of
THE NEUBERGER FIRM, P.A., Wilmington, Delaware, Thomas C. Crumplar,
Esquire, of JACOBS & CRUMPLAR, P.A., Wilmington, Delaware, Scott D.
Cousins, Esquire, of COUSINS LAW LLC, Wilmington, Delaware and Martin D.
Haverly, Esquire, of MARTIN D. HAVERLY, ATTORNEY AT LAW,
Wilmington, Delaware, Attorneys for Plaintiffs.
Andrew D. Cordo, Esquire (Argued), Daniyal M. Iqbal, Esquire, and Nora M.
Crawford, Esquire, of WILSON SONSINI GOODRICH & ROSATI, P.C.,
Wilmington, Delaware, Attorneys for Defendant.
Adams, J.
1
INTRODUCTION
Over three and a half years ago, on January 7, 2020, public health officials in
China identified a novel coronavirus which was causing an outbreak of atypical
pneumonia in the city of Wuhan.1 Shortly thereafter, this virus was identified as the
SARS CoV-2 virus.2 “COVID-19” was the official name given for the outbreak of
this coronavirus.3 On March 11, 2020, the World Health Organization declared that
the spread of COVID-19 was a pandemic.4 In March 2020, the COVID-19 virus
began rapidly spreading across the U.S.5
This case centers around several restrictions (the “Challenged Restrictions” or
“Restrictions”) that the Governor of Delaware, John C. Carney, Jr. (the “Governor”),
put in place between March through May 2020 to mitigate the spread of COVID-19.
The two Plaintiffs, who are church pastors, originally filed their complaint in the
Court of Chancery and transferred the complaint to this Court after it was dismissed
for lack of subject matter jurisdiction. Plaintiffs claim the Challenged Restrictions
violated their rights pursuant to the First Amendment to the United States
1
CDC Museum COVID-19 Timeline, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/museum/timeline/covid19.html#:~:text=January%2010%2C%202020&text
=CDC%20publishes%20information%20about%20the,2%20virus%20on%20its%20website (last
reviewed Mar. 15, 2023).
2
Id.
3
Id.
4
Id.
5
See COVID Data Tracker, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://covid.cdc.gov/covid-data-tracker/#datatracker-home (last updated Aug. 12, 2023).
2
Constitution and Article I, Section 1 of the Delaware Constitution. Plaintiffs also
claim the Restrictions violated their right to equal protection pursuant to the
Fourteenth Amendment to the U.S. Constitution. Before the Court is Defendant’s
motion to dismiss the complaint. For the reasons that follow, Defendant’s motion is
GRANTED.
FACTS
I. The State of Emergency
On March 11, 2020, the World Health Organization declared that the COVID-
19 outbreak had caused a global pandemic.6 On March 13, 2020, the Governor
issued a “Declaration of a State of Emergency for the State of Delaware Due to a
Public Health Threat” (the “Emergency Declaration” or “Declaration”).7 The
Emergency Declaration advised event hosts to “cancel all ‘non-essential mass
gatherings’ of 100 people or more” and recommended that “those at highest risk
(over age 60 and with chronic health conditions) not attend large gatherings.”8 The
Declaration advised that if any large gathering took place, that individuals should
take certain precautions to reduce the spread of the virus. Aside from guidance
specific to schools, and senior living and care facilities, the Declaration did not
6
The facts are drawn from the complaint, documents incorporated by reference, and publicly
available information subject to judicial notice. See In re Santa Fe Pac. S’holder Litig., 669 A.2d
59, 69-70 (Del. 1995).
7
Mot. to Dismiss, Ex. 1; Declaration of a State of Emergency for the State of Delaware Due to a
Public Health Threat (“Decl.”).
8
Decl. ¶ 6.
3
prescribe specific rules for businesses or gatherings of fewer than one hundred
people.9
II. The Governor’s Authority Pursuant to the Emergency Management Act
The Governor’s authority to declare this state of emergency was derived from
the Emergency Management Act.10 Pursuant to 20 Del. C. § 3115(a), the Governor
is “responsible for addressing the dangers to life, health, environment, property or
public peace within the State presented by emergencies or disasters . . . .”11 Section
3115(c) grants the Governor the power to proclaim a state of emergency. It provides:
In addition to the powers conferred upon the Governor by
this chapter, a state of emergency may be proclaimed by
emergency order of the Governor upon a finding that an
emergency or disaster has occurred or that such
occurrence or threat of that occurrence is imminent. The
state of emergency shall continue until the Governor finds
that the threat or danger has passed or the emergency or
disaster has been dealt with to the extent that conditions
necessitating a state of emergency no longer exist and
terminates the state of emergency by subsequent order.
No state of emergency can continue for more than 30 days
without being renewed by the Governor.12
“[T]he Governor may issue, amend and rescind all necessary executive orders,
emergency orders, proclamations and regulations, which shall have the force and
effect of law.”13 The Act further provides that the Governor may “[t]ake such other
9
See Decl. ¶¶ 7-8.
10
20 Del. C. § 3115.
11
Id. § 3115(a).
12
Id. 3115(c).
13
Id. § 3115(b).
4
actions as the Governor reasonably believes necessary to help maintain life, health,
property or public peace.”14
As the rate of infection and death toll caused by the pandemic increased over
the next several weeks, the Governor issued a series of modifications to the
Emergency Declaration which are summarized herein.15
III. The Challenged Restrictions
Between March 22 and June 2, 2020, the Governor issued several emergency
orders and restrictions to limit the spread of COVID-19. The Challenged
Restrictions limited the number of attendees and restricted the activities in houses of
worship (“Houses of Worship”).
A. The Fourth Modification
On March 22, 2020, the Fourth Modification set restrictions specific to
“Essential Businesses,” which included Houses of Worship.16 This modification
stated that Essential Businesses were “subject to the requirements of existing
emergency orders[] . . . .” which included the Second Modification to the Emergency
14
Id. § 3116(b)(13).
15
This decision does not include every modification to the Emergency Declaration but only those
pertinent to addressing Plaintiffs’ claims.
16
Compl., Ex. B at 3-4, 15-16; Off. of the Governor John Carney, Fourth Modification of the
Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat ¶ 1
(Mar. 22, 2020, 4:00 PM), available at https://governor.delaware.gov/health-soe/fourth-state-of-
emergency/ (the “Fourth Modification”). Citations to Complaint Exhibits refer to Exhibits
attached to the complaint in the previous Court of Chancery action, captioned: C.A. No. 2021-
1037-JTL.
5
Declaration. 17 The Second Modification mandated that “organizers and sponsors of
public gatherings of 50 or more people shall cancel the gatherings immediately and
not reschedule them until after May 15, 2020, or the public health threat of COVID-
19 has been eliminated.”18 The Fourth Modification included a list of mandates and
restrictions, titled “Responsibilities of Essential Businesses,” which included
adherence to the guidance set forth on social distancing, cleaning, and sanitizing.19
The Fourth Modification stated that it had “the force and effect of law,” and that
“[a]ny failure to comply with [its] provisions . . . constitutes a criminal offense.”20
B. The Ninth Modification
On April 1, 2020, the Ninth Modification limited in-person gatherings to ten
people “until after May 15, 2020 or the public health threat of COVID-19 has been
eliminated.”21 The Ninth Modification included an exception for “gatherings of
employees engaged in work at [E]ssential [B]usinesses[,]” but specified that the
requirements for hand hygiene and social distancing remained in effect.22 By the
17
Fourth Modification ¶ 6(q)(12).
18
Off. of the Governor John Carney, Second Modification of the Declaration of a State of
Emergency for the State of Delaware Due to a Public Health Threat ¶ 1 (Mar. 18, 2020, 2:00 PM),
available at https://governor.delaware.gov/health-soe/second-state-of-emergency/ (the “Second
Modification”).
19
Fourth Modification ¶ 5.
20
Id. ¶ 9.
21
Compl., Ex. D ¶ 1; Off. of the Governor John Carney, Ninth Modification of the Declaration of
a State of Emergency for the State of Delaware Due to a Public Health Threat ¶ 1 (Apr. 1, 2020,
3:00 PM), available at https://governor.delaware.gov/health-soe/ninth-state-of-emergency/ (the
“Ninth Modification”).
22
Ninth Modification ¶ 1.
6
terms of the Ninth Modification, Essential Businesses could allow no more than
twenty percent of stated fire occupancy requirements in the building at one time and
no more than ten percent during exclusive hours for high-risk populations.23
C. The Tenth Modification
On April 6, 2020, the Governor issued the Tenth Modification to the
Declaration.24 This modification ordered that Houses of Worship “comply with all
social distancing requirements set forth in the COVID-19 State of Emergency
declaration and all modifications, including attendance of no more than 10 people
for in-person services under any circumstances.”25 Out of the 237 categories of
Essential Businesses that the State of Delaware identified, only Houses of Worship
were subject to this ten person restriction.26 Other organizations deemed Essential
Businesses were only subject to the twenty percent restriction within the same
industry subsector.27
23
Id. ¶ 2(a).
24
Compl., Ex. E at 13; Off. of the Governor John Carney, Tenth Modification of the Declaration
of a State of Emergency for the State of Delaware Due to a Public Health Threat (Apr. 6, 2020,
6:00 PM), available at https://governor.delaware.gov/health-soe/tenth-state-of-emergency/ (the
“Tenth Modification”).
25
Tenth Modification ¶ 1.
26
Id.
27
Compare id, with Ninth Modification ¶ 2(a). For a summary of the April Worship Guidance
issued by the Delaware Division of Public Health on April 7, 2020, see In re COVID-Related
Restrictions on Religious Servs., 285 A.3d 1205, 1215 (Del. Ch. 2022) (hereinafter “Chancery
Action”).
7
D. The Eighteenth Modification
On May 18, 2020, the Eighteenth Modification provided that Houses of
Worship could either hold: (1) “in-person services and gatherings of 10 or fewer
people”; or (2) “in-person services and gatherings” of up to 30% capacity only if all
attendees could observe CDC social distancing guidelines.28 These modifications
included four pages of restrictions on the operation of Houses of Worship. 29 These
restrictions included prohibiting: communion, baptism, worship over 60 minutes,
preachers without masks, and service on 6 out of 7 days each week.30 Although the
Governor banned the touching requirement for baptisms, he issued no such
restrictions on Jewish circumcisions.31
E. The Bullock Action and the Nineteenth Modification
On May 19, 2020, Reverend Dr. Christopher Alan Bullock (“Bullock”) filed
a lawsuit against the Governor in the United States District Court for the District of
28
Compl., Ex. J ¶ A; Off. of the Governor John Carney, Eighteenth Modification of the Declaration
of a State of Emergency for the State of Delaware Due to a Public Health Threat (May 18, 2020,
12:30 PM), available at https://governor.delaware.gov/health-soe/eighteenth-state-of-emergency/
(the “Eighteenth Modification”). The Delaware Division of Public Health also issued the May
Worship Guidance on the same date. For a summary of this guidance, see Chancery Action, 285
A.3d at 1216-18.
29
See Compl., Ex. K (the “May Worship Guidance”).
30
See id.
31
Id. at 4.
8
Delaware (“the District Court”).32 Bullock sought injunctive relief, including a
temporary restraining order (“TRO”).33
On May 22, 2020, the Governor issued the Nineteenth Modification which
eliminated the “Essential” versus “Non-essential” categorization of businesses and
replaced it with industry-specific guidance found in the Delaware Phase 1
Reopening Plan.34 Under this Modification, Houses of Worship could operate at
30% of their permitted fire occupancy.35
On May 28, 2020, the District Court denied Bullock’s request for a TRO
noting that the relief Bullock requested was actually more restrictive than the current
Reopening Worship Guidance and because he had not established a threat of
“irreparable harm” required to grant a TRO.36 The United States Court of Appeals
for the Third Circuit affirmed the denial of the TRO.37
32
Bullock v. Carney, 463 F. Supp. 3d 519 (D. Del. 2020).
33
Id. at 523-24.
34
Compl. ¶¶ 166-67, Ex. M; Off. of the Governor John Carney, Nineteenth Modification of the
Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (May
22, 2020, 4:00 PM), available at https://governor.delaware.gov/health-soe/nineteenth-state-of-
emergency/ (the “Nineteenth Modification”); see Governor John Carney, Delaware’s Reopening,
https://governor.delaware.gov/wp-content/uploads/sites/24/2020/06/Delaware-Economic-
Reopening-PHASE-1_Revised-6.6.20.pdf (revised June 6, 2020) (the “Phase One Plan”).
35
Phase One Plan at 23.
36
Bullock, 463 F. Supp. 3d at 523-25.
37
Bullock v. Carney, 806 Fed. App’x 157 (3d Cir. 2020), amended and superseded by Bullock v.
Carney, 2020 WL 7038527 (3d Cir. June 4, 2020).
9
F. The Twentieth and Twenty-First Modifications
On May 31, 2020, the Governor issued the Twentieth Modification.38 This
Modification eliminated the restrictions in the Eighteenth Modification with respect
to Houses of Worship and provided that the thirty percent capacity limit remained
in effect, as it did for other Essential Businesses.39 There have been no restrictions
issued for Houses of Worship since the Twentieth Modification. Plaintiffs concede
that, as of June 2, 2020, the “offending Orders governing religious rituals [had been]
abandoned.”40 On June 14, 2020, the Governor issued the Twenty-first
Modification, which increased the capacity limit for Essential Businesses, including
Houses of Worship to sixty percent.41
G. The Bullock Settlement
On November 10, 2020, the parties to the Bullock Action reached a
settlement. By the terms of the Settlement Agreement, the Governor agreed “not to
impose restrictions that specifically target[ed] [H]ouses of [W]orship,” including but
not limited to a restriction limiting gatherings in Houses of Worship to ten persons.
38
See Off. of the Governor John Carney, Twentieth Modification of the Declaration of a State of
Emergency for the State of Delaware Due to a Public Health Threat (May 31, 2020, 3:30 PM),
available at https://governor.delaware.gov/health-soe/twentieth-state-of-emergency/ (the
“Twentieth Modification”).
39
Id. ¶ D.
40
Compl. ¶ 107.
41
Off. of the Governor John Carney, Twenty-first Modification of the Declaration of a State of
Emergency for the State of Delaware Due to a Public Health Threat ¶ D (June 14, 2020, 5:00 PM),
available at https://governor.delaware.gov/health-soe/twenty-first-state-of-emergency/ (the
“Twenty-first Modification”).
10
H. The Governor ends the State of Emergency
On July 13, 2021, the Governor ended the State of Emergency and terminated
all of the restrictions in the Emergency Declaration, and their modifications.
I. The Court of Chancery Action
On December 1, 2021, approximately eighteen months after the Twentieth
Modification lifted the restrictions on Houses of Worship, Pastor Alan Hines of the
Townsend Free Will Baptist Church and Reverend David W. Landow of Emmanuel
Orthodox Presbyterian Church filed separate actions in the Court of Chancery.42
Plaintiffs claimed the Challenged Restrictions violated their rights under both the
Delaware and United States Constitutions. Plaintiffs consolidated the complaints on
December 23, 2021.43 Plaintiffs’ action in the Court of Chancery sought the
following remedies: (1) a declaratory judgment regarding the constitutionality of the
Challenged Restrictions, (2) a permanent injunction against the Governor and his
successors to prevent them from enacting similar future restrictions, and (3) nominal
and compensatory damages.44 The “primary” relief requested in the Court of
Chancery action was a permanent injunction.45
42
Chancery Action, 285 A.3d at 1222.
43
See C.A. No. 2021-1036-JTL, D.I. 16 (hereinafter “Court of Chancery Compl.”).
44
Chancery Action, 285 A.3d at 1209.
45
Court of Chancery Compl. ¶¶ 3, 12, 320.
11
On November 21, 2022, the Court of Chancery dismissed Plaintiffs’
consolidated complaint for lack of subject matter jurisdiction. The Court held that
the request for injunctive relief was not justiciable because “Plaintiffs cannot meet
the operative standard” of demonstrating a “reasonable apprehension that the
Governor would engage in conduct that would warrant a permanent injunction.”46
The Court stated that the possibility of future COVID-19-induced harm to Houses
of Worship was “speculative at best.”47
PROCEDURAL HISTORY
Plaintiffs transferred this action to the Superior Court pursuant to 10 Del. C.
§ 1902 and on January 24, 2023, filed the operative Complaint on this Court’s
docket.48 Plaintiffs allege violations of the following constitutional rights:
• Count I: Article I, Section 1 of the Delaware Constitution;
• Count II: the Free Exercise Clause of the First Amendment of the
United States Constitution;
• Count III: Free Speech, Free Exercise, Free Assembly, Freedom of
Association pursuant to the First Amendment of the United States
Constitution;
46
Chancery Action, 285 A.3d at 1233-34.
47
Id. at 1234.
48
Plaintiffs in this action filed the exact same complaint, including a request for injunctive relief,
as they did in the Chancery Action.
12
• Count IV: Freedom from establishment of religion pursuant to the First
Amendment of the United States Constitution; and
• Count V: Equal Protection pursuant to the Fourteenth Amendment of
the United States Constitution.49
As relief, Plaintiffs request nominal and compensatory damages, and a
declaratory judgment. Defendant filed a motion to dismiss on April 14, 2023.
Defendant asserts that Plaintiffs’ claim for damages for violations of their civil rights
pursuant to the U.S. and Delaware Constitutions should be dismissed because it is
barred by the doctrine of qualified immunity and the State Tort Claims Act
(“STCA”). With respect to Plaintiffs’ request for a declaratory judgment, Defendant
argues Plaintiffs claims are not justiciable because there is no actual case or
controversy, and because Plaintiffs lack standing.50 Briefing concluded on May 18,
2023. The Court held oral argument on May 31, 2023 and reserved decision.
STANDARD OF REVIEW
I. Rule 12(b)(1) applies to Plaintiffs’ standing argument.
Defendant argues that Plaintiffs’ claims should be dismissed pursuant to Rule
12(b)(1) for lack of subject matter jurisdiction because they are not justiciable. The
court may review motions to dismiss based on standing pursuant to Rule 12(b)(1) or
49
Compl. ¶¶ 190, 266, 281, 290, 307.
50
Opening Br. at 27-35; Reply Br. at 2.
13
12(b)(6) depending on the circumstances of the case. Whether Rule 12(b)(1) or
12(b)(6) applies depends on whether “the issue of standing is related to the merits.”51
When “the jurisdictional facts are intertwined with facts central to the merits
of the dispute,” Courts should adjudicate the issue of standing pursuant to Rule
12(b)(6).52 In other words, when the defendant is arguing that the court cannot grant
relief to a plaintiff in a particular case because this particular plaintiff has not pleaded
an essential element of the claim, the motion is properly decided under Rule
12(b)(6).53 When the defendant is arguing, however, that the court would not have
the authority to grant the relief requested to any plaintiff, it should be decided
pursuant to Rule 12(b)(1).54
The standing issue presented in this case relates solely to the Court’s ability
to redress Plaintiffs’ alleged injury; it does not relate to whether Plaintiffs have
suffered an injury-in-fact or whether Defendant’s actions caused that injury.
Defendant argues that, regardless of the particular plaintiff who filed this claim, the
51
Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1280, 1283-84, n.7, n.8 (Del.
2007) (noting that state and federal courts are divided as to whether the issue of standing is properly
challenged under Rule 12(b)(1) or 12(b)(6)); see RBC Capital Mkts., LLC v. Educ. Loan Tr. IV,
87 A.3d 632, n.47 (Del. 2014) (reaffirming holding in Appriva Shareholder litigation Co. that the
standard of review on a motion to dismiss for lack of standing depends on the extent it is
intertwined with the merits of a plaintiff’s claim(s)); Dewey v. Arce, 2020 WL 1698594, n.8 (Del.
Ch. Apr. 8, 2020) (quoting Appriva S’holder Litig. Co., 937 A.2d at 1286).
52
Appriva S’holder Litig. Co., LLC, 937 A.2d at 1285 (internal quotation marks and citation
omitted).
53
Id.54
Id.14
court could not redress the alleged injury caused by the Restrictions by granting
declaratory relief because they are no longer in effect. A declaratory judgment,
Defendant argues, would not alter the status quo. The redressability analysis is the
same regardless of the particular plaintiff who filed this claim. Because Defendant
argues that no plaintiff would have standing to bring these claims due to lack of
redressability and because the issue of standing is not sufficiently related to the
merits, the Court will evaluate Plaintiffs’ standing pursuant to Rule 12(b)(1).55
II. Delaware’s Rule 12(b)(6) pleading standard applies to Defendant’s
motion to dismiss Plaintiffs’ Section 1983 claims for damages.
Defendant moves to dismiss Plaintiffs’ claims for monetary damages filed
pursuant to Delaware Rule of Civil Procedure 12(b)(6). According to Defendant,
the Governor is immune from damages for violations of the U.S. Constitution
pursuant to the doctrine of qualified immunity, and immune from damages for
violations of the Delaware Constitution pursuant to the STCA.
The Court must first determine whether to apply Delaware Superior Court
Civil Rule 12(b)(6) or Federal Rule of Civil Procedure 12(b)(6) for Defendant’s
motions to dismiss Plaintiffs’ claims for violations of federal law.56 As a general
matter, Delaware’s “reasonable conceivability” threshold applies in Delaware state
55
See, e.g., Spiro v. Vions Tech., Inc., 2014 WL 1245032, at *8 (Del. Ch. Mar. 24, 2014) (reasoning
that the issue of standing was jurisdictional where a party is arguing “the court lacks the authority
to grant the relief requested by the plaintiff.”).
56
The Court will apply Delaware’s Rule 12(b)(6) pleading standard to Plaintiffs’ claims for
violations of Article I, Section 1 of the Delaware Constitution.
15
courts, not the “plausibility” threshold articulated in the United States Supreme
Court decisions, Ashcroft v. Iqbal57 and Bell Atlantic Corp. v. Twombly.58
The Delaware Superior Court, however, is “split as to whether to apply [the
Delaware or federal pleading standard] to claims brought under Section 1983.”59
Because the pleading standard governs a matter of procedural law, this Court will
follow those cases that apply the Delaware standard of review to Section 1983
claims.60 Applying the Delaware “standard does not, however, render federal
precedent meaningless to the analysis of this case.”61 Under both standards,
plaintiffs still must show that they have provided sufficient facts to place defendants
on notice of the claims against them.62
Pursuant to Delaware Rule of Civil Procedure 12(b)(6), the Court must accept
all well pled allegations as true.63 “A complaint’s allegations are ‘well-pleaded’ if
they put the opposing party on notice of the claims being brought against it.”64 The
57
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
58
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007); Dollard v. Callery, 185 A.3d 694,
703 (Del. Super. 2018) (citing Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings, LLC,
27 A.3d 531, 536 (Del. 2011) (stating that as a general matter “the lower ‘reasonable
conceivability’ threshold continues to apply [to motions to dismiss] in Delaware state courts”).
59
Dufresne v. Camden-Wyoming Fire Co., Inc., 2020 WL 2125797, at *2, n.9 (Del. Super. May
5, 2020) (comparing Dollard, 185 A.3d at 703, with Eskridge v. Hutchins, 2017 WL 1076726, at
*2 (Del. Super. March 22, 2017)).
60
See, e.g., Dollard, 185 A.3d at 703; Dufresne, 2020 WL 2125797, at *2.
61
Dollard, 185 A.3d at 704.
62
Id.63
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978) (internal citation omitted).
64
Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL 2119652, at *2 (Del. Super. May 20, 2014)
(citing Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403, 406 (Del. 1995));
16
Court “will accept even vague allegations as ‘well-pleaded’ if they provide
defendants notice of a claim.”65 The Court must assess whether the claimant “may
recover under any reasonably conceivable set of circumstances susceptible of
proof.”66 The court must draw every reasonable factual inference in favor of the
non-moving party and must deny the motion to dismiss if the claimant may recover
under that standard.67 Dismissal will not be granted unless a claim is clearly without
merit.68
ANALYSIS
Defendant sets forth two arguments for why this Court should dismiss
Plaintiffs’ claims for monetary damages: (1) pursuant to the doctrine of qualified
immunity, the Governor is immune from damages for the alleged violations of
Plaintiffs’ rights under the U.S. Constitution (Counts II-V); (2) pursuant to the
STCA, the Governor is immune from damages for the alleged violations of
Plaintiffs’ rights under the Delaware Constitution (Count I). Defendant also argues
that all of Plaintiffs’ claims should be dismissed because they are not justiciable
insofar there is no current case or controversy and because Plaintiff lacks standing.
Bramble v. Old Republic Gen. Ins. Corp., 2017 WL 345144, at *3 (Del. Super. Jan. 20, 2017)
(internal citations omitted).
65
Dollard, 185 A.3d at 703 (internal citation omitted).
66
Hackett v. TD Bank, N.A., 2023 WL 3750378, at *2 (Del. Super. May 31, 2023) (internal
quotation marks and citation omitted).
67
Id.68
Bramble, 2017 WL 345144, at *3 (internal citation omitted).
17
I. The Governor has qualified immunity from damages resulting from
alleged violations of Plaintiffs’ rights under the U.S. Constitution (Counts
II-V).
A. The Doctrine of Qualified Immunity
In counts II-V, Plaintiffs allege that the Governor committed acts that violate
their constitutional rights pursuant to 42 U.S.C. § 1983 and entitle them to damages.
Pursuant to Section 1983, “[e]very person who, under color of any statute . . . of any
State . . . subjects or causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law . . . .” To prevail, a
plaintiff must demonstrate: (1) deprivation of a right under the United States
Constitution (2) by a person acting under color of State law.69 If a defendant raises
the doctrine of qualified immunity as a defense, Plaintiffs must also establish that
the Governor’s conduct is not protected by that doctrine.70 To establish that a
government official is not entitled to qualified immunity, a plaintiff must show: (1)
that the official’s actions “violated a constitutional right” and (2) the “right was
clearly established at the time of the alleged violation.”71 The court may analyze
these elements in any order.72
69
Dollard, 185 A.3d at 706. There is no dispute that the Governor was acting under color of law.
70
Hunt ex rel. DeSombre v. State, Dep’t of Safety & Homeland Sec., Div. of Delaware State Police,
69 A.3d 360, 365 (Del. 2013); Case v. Ivey, 542 F. Supp. 3d 1245, 1269-70 (M.D. Ala. 2021).
71
Case v. Ivey, 542 F. Supp. 3d 1245, 1269 (M.D. Ala. 2021) (quoting Patel v. Lanier Cty. Ga.,
969 F.3d 1173, 1188 (11th Cir. 2020)).
72
Id. at 1270 (internal citation omitted).
18
The purpose of qualified immunity is to “shield[] government officials
performing discretionary functions from suits for money damages unless their
conduct violates clearly established law of which a reasonable official would have
known. It gives government officials the breathing room to make reasonable, even
if mistaken, judgments . . . .”73 Qualified immunity is meant to protect government
officials “when their jobs require them to make difficult on-the-job decisions”74 or
when they make “reasonable mistakes about the legality of their actions . . . .”75 This
doctrine “applies regardless of whether the government official’s error is a mistake
of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” 76
“When properly applied, [qualified immunity] protects all but the plainly
incompetent or those who knowingly violate the law.”77
73
Mauro v. Cuomo, 2023 WL 2403482, at *6 (E.D.N.Y. Mar. 8, 2023) (quoting Nat’l Rifle Assoc.
of Am. v. Vullo, 49 F.4th 700, 714 (2d Cir. 2022)); Hunt ex rel. DeSombre, 69 A.3d at 365; Hanson
v. Del. State Pub. Integrity Comm’n, 2012 WL 3860732, at *15 (Del. Super. Aug. 30, 2012), aff’d,
69 A.3d 370 (Del. 2013)
74
Mauro, 2023 WL 2403482, at *7 (quoting DiBlasio v. Novello, 413 F. App’x 352, 356 (2d Cir.
2011)).
75
Id. (quoting Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir. 2012)); see also Case, 542
F. Supp. 3d at 1269 (“Qualified immunity serves to balance ‘two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.’”)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
76
Mauro, 2023 WL 2403482, at *7 (quoting Sudler, 689 F.3d at 174).
77
Taylor v. Barkes, 575 U.S. 822, 825 (2015) (per curiam) (alteration in original) (internal
quotations omitted).
19
Laws and rights derived from those laws are clearly established if “any
reasonable official would understand that his challenged conduct” violates them.78
Although there does not need to be “a case directly on point for a right to be clearly
established, existing precedent must have placed the statutory or constitutional
question beyond debate.”79 A right is clearly established if there is either “binding
Supreme Court and Third Circuit precedent or . . . a ‘robust consensus of cases of
persuasive authority in the Courts of Appeals.’”80 The right must be clearly
established “at the time of the alleged misconduct”81 and “must be particularized to
the facts of the case.”82
78
Dollard v. Callery, 185 A.3d 694, 712-13 (Del. Super. 2018) (citing Taylor, 575 U.S. at 825;
Hunt ex rel. DeSombre, 69 A.3d at 365 (for a right to be “clearly established” it must be “clear to
a reasonable [official] that his conduct was unlawful in the situation he confronted.”) (alteration in
original) (internal quotations omitted); Pleasant View Baptist Church v. Beshear, 2021 WL
4496386, at *6 (E.D. Ky. 2021) (the unlawfulness of an official’s conduct is only “clearly
established” if it was “‘beyond debate’ when the official acted . . . .”) (quoting DeCrane v. Eckart,
12 F.4th 586, 599 (6th Cir. 2021)).
79
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7-8 (2021); White v. Pauly, 580 U.S. 73, 78-79 (2017).
80
Benner v. Wolf, 2021 WL 4123973, at *5 (M.D. Pa. 2021) (quoting Bland v. City of Newark,
900 F.3d 77, 84 (3d Cir. 2018) (internal citations omitted)); District of Columbia v. Wesby, 138 S.
Ct. 577, 590 (2018) (“It is not enough that the rule is suggested by then-existing precedent.”).
81
Taylor, 575 U.S. at 825 (internal quotation marks and citation omitted).
82
Northland Baptist Church of St. Paul, Minnesota v. Walz, 530 F. Supp. 3d 790, 806 (D. Minn.
2021) (quoting White, 580 U.S. at 79); Wesby, 138 S. Ct. at 589-90 (quoting Plumhoff v. Rickard,
572 U.S. 765, 779 (2014), then Anderson v. Creighton, 483 U.S. 635, 641 (1987)) (“We have
repeatedly stressed that courts must not ‘define clearly established law at a high level of generality,
since doing so avoids the crucial question whether the official acted reasonably in the particular
circumstances that he or she faced.’ A rule is too general if the unlawfulness of the officer’s
conduct ‘does not follow immediately from the conclusion that [the rule] was firmly established.’”
(alteration in original)).
20
If the claimed right is not clearly established, the defendant is entitled to
qualified immunity from damages for civil liability.83 “[E]ven where the law is
clearly established and the scope of an official’s permissible conduct is clearly
defined,” the qualified immunity defense may still shield officials from liability.84
“[I]f it was objectively reasonable for [the official] at the time of the challenged
action to believe his acts were lawful” the official may be entitled to qualified
immunity.85 “Accordingly, the question to be answered is whether a reasonable
government officer, confronted with the facts as alleged by [the] plaintiff, could
reasonably have believed that his actions did not violate some settled constitutional
right.”86
B. When the Governor implemented the Challenged Restrictions, the law
was not clearly established as to whether these and similar restrictions
violated Plaintiffs’ rights pursuant to the U.S. Constitution.
The Governor is entitled to qualified immunity from damages resulting from
alleged violations of the First and Fourteen amendments to the U.S. Constitution
because the case law had not clearly established that the Challenged Restrictions
violated these laws when the Governor issued them. The Governor issued the Fourth
Modification on March 22, 2020 and lifted the last Challenged Restriction with the
83
Hanson v. Del. State Pub. Integrity Comm’n, 2012 WL 3860732, at *15 (Del. Super. Aug. 30,
2012), aff’d, 69 A.3d 370 (Del. 2013).
84
Mauro, 2023 WL 2403482, at *7.
85
Id.86
Id. (quoting Cloister East, Inc. v. N.Y. State Liquor Auth., 563 F. Supp. 3d 90, 108 (S.D.N.Y.
2021)).
21
Twentieth Modification on June 2, 2020.87 In this roughly two-and-a-half month
time period, there was no clear consensus among federal or state courts that the
Governor’s actions were unlawful. In fact, decisions issued around the country
found that, during this time period, the law was wholly unsettled as to whether
officials could issue certain restrictions for the purpose of preventing the spread of
the coronavirus that may have also curtailed individuals’ First Amendment or Equal
Protection rights.88
87
Compl. ¶ 100.A. “Up to a June 2nd preliminary injunction hearing, Governor Carney refused to
abandon his specifically mandated religious procedures . . . .” Id.88
The following cases involve challenges to COVID-19 related restrictions where the plaintiff(s)
alleged violations of the First Amendment, not including violations of the Free Exercise or
Establishment clauses: Mauro, 2023 WL 2403482, at *6 (finding defendants entitled to qualified
immunity because plaintiffs failed to allege violation of clearly established right to unrestricted in-
person visitation in a nursing home between March 24, 2020-March 4, 2021); Hinkle Fam. Fun
Ctr., LLC v. Grisham, 586 F. Supp. 3d 1118, 1128 (D.N.M. 2022) (finding no precedent to suggest
that defendants violated clearly established right by enacting challenged orders issued between
March-July 2020 that imposed temporary restrictions on recreational facilities and restrictions on
travel to address the coronavirus pandemic); Benner v. Wolf, 2021 WL 4123973, at *3, 5 (M.D.
Pa. 2021) (holding when defendant imposed challenged restrictions between March-June 2020 that
ordered closure of some businesses no precedent or persuasive authority held similar restrictions
violated clearly established law); Bastian v. Lamont, 2022 WL 2477863, at *1, 6-7 (D. Conn.
2022) (holding March and April 2020 executive orders mandating business closures and a policy
for spas and salons to provides services at clients’ homes did not violate clearly established law
when they were issued); Bojicic v. DeWine, 569 F. Supp. 3d 669, 677, 692-93 (N.D. Ohio 2021)
(holding due to binding precedent it was “irrational” to assert a reasonable health official would
have known that March and May 2020 orders mandating business closures and compliance with
safety standards violated Supreme Court precedent); Mader v. Union Township, 2021 WL
3852072, at *7 (W.D. Pa. 2021) (holding “whether the government could limit First Amendment
rights [to physically attend township meetings] by prohibiting in-person gatherings given the
ongoing COVID-19 pandemic was not clearly established at the time, or even several months
later.”); New Mexico Elks Assoc. v. Grisham, 595 F. Supp. 3d 1018, 1026-27 (D.N.M. 2022)
(holding plaintiffs-fraternal organizations provided no precedent, and that the court found none, to
suggest government officials violated any clearly established rights, including equal protection,
freedom of expression and assembly, by enacting public health orders beginning in March 2020,
which imposed temporary restrictions on public gatherings).
22
For example, U.S. district courts in Northland Baptist Church of St. Paul,
Minnesota v. Walz,89 Case v. Ivey,90 and Mader v. Union Township91 found that
defendants were entitled to qualified immunity from the plaintiffs’ claims for
violations of their First Amendment rights because the plaintiffs did not demonstrate
the defendants violated a clearly established right.
In Northland Baptist Church of St. Paul, Minnesota v. Walz, the District Court
for the District of Minnesota addressed whether the governor was entitled to
The following cases involve challenges to COVID-19 related restrictions where the
plaintiff(s) alleged violations of Free Exercise and Establishment clauses of the First Amendment,
among other First and Fourteenth Amendment rights: Northland Baptist Church of St. Paul,
Minnesota v. Walz, 530 F. Supp. 3d 790, 806-07 (D. Minn. 2021) (holding defendants entitled to
qualified immunity because there was no existing eighth circuit precedent involving sufficiently
similar facts establishing restrictions implemented between March-June 2020 limiting building
capacity were unlawful at that time); Case v. Ivey, 542 F. Supp. 3d 1245, 1269-80 (M.D. Ala.
2021) (holding defendants entitled to qualified immunity on plaintiffs’ establishment clause, free
exercise, and expressive association claims because allegations did not establish COVID-19
restrictions issued between March-May 2020 violated clearly established law); Spell v. Edwards,
579 F. Supp. 3d 806, 810-11, 822-23 (M.D. La. 2022) (holding on remand that governor entitled
to qualified immunity on Free Exercise claims brought by plaintiffs, a church and pastor, because
the law had not clearly established that governor’s orders issued between March-May 2020
limiting indoor gatherings, violated the Free Exercise clause); Murphy v. Lamont, 2022 WL
1082609, at *12-14 (D. Conn. 2022) (holding governor entitled to qualified immunity on First
Amendment claims because the law had not clearly established that governor’s orders issued
between March-April 2020 limiting public gatherings, including those at Houses of Worship,
violated the First Amendment rights to association, speech, assembly, and religious worship);
Abiding Place Ministries v. Newsom, 2023 WL 2001125, at *5 (S.D. Cal. Feb. 14, 2023) (holding
in part that “there was no clear precedent in March or April 2020 that would have put every
reasonable official on notice that promulgating orders restricting in person religious gatherings to
slow the spread of the COVID-19 virus was clearly and definitively unconstitutional” under the
Establishment clause, Free Exercise, Free Speech, Freedom of Assembly, and the clauses of the
U.S. Constitution).
The cases in this footnote constitute an exemplary, not an exhaustive, list of those that have
found COVID-19-related restriction did not violate a clearly established right.
89
530 F. Supp. 3d at 806-07.
90
542 F. Supp. 3d at 1269-80.
91
2021 WL 3852072, at *7.
23
qualified immunity from the plaintiffs’ claims for violations of their First
Amendment rights.92 The plaintiffs included two churches and one pastor (“Faith-
Based Plaintiffs”), who challenged the governor’s executive orders, which limited
capacity to fifty percent at Houses of Worship, cosmetology salons, and barber
shops.93 The Faith-Based Plaintiffs alleged the executive orders violated their rights
of free exercise, freedom of speech, and freedom of assembly.94 The court held the
governor was entitled to qualified immunity because current Eighth Circuit
precedent had not clearly established that the limitations on building capacity were
unlawful when they were put in place between March-June 2020.95 The Faith-Based
plaintiffs had not “clearly defined the scope of the constitutional rights that they
allege[d] ha[d] been violated, let alone tied those allegations to binding Eighth
Circuit precedent or a robust consensus of persuasive authority involving sufficiently
similar facts.”96 The court found, therefore, that the governor was not on fair notice
that his executive orders violated the First Amendment.97
Similarly, in Case v. Ivey, the District Court for the Middle District of
Alabama addressed whether the governor was entitled to qualified immunity from
alleged violations of the plaintiffs’ First Amendment rights of free exercise, freedom
92
530 F.Supp.3d at 806-07.
93
Id. at 799.
94
Id.
95
Id. at 807.
96
Id.
97
Id.
24
from establishment of religion, and freedom of assembly.98 The plaintiffs included
two pastors who alleged that the governor’s April 2020 order, which restricted
worship services to nine socially-distanced people, but only limited other essential
business to fifty percent capacity, violated their First Amendment rights.99 The
plaintiffs also alleged that the governor’s May 2020 order which limited capacity to
a number that permitted a six-foot distance between all individuals violated their
rights.100 The court held that the law was not clearly established when the governor
issued the aforementioned orders.101
In Mader v. Union Township, the District Court for the Western District of
Pennsylvania also addressed whether various township officials were entitled to
qualified immunity from the plaintiffs’ claims for violations of their First
Amendment right of freedom of assembly.102 The plaintiffs were two married
couples who alleged that their First Amendment rights were violated when they were
prevented from attending a June 24, 2020 township public meeting in person.103 On
the date of this meeting, the state of Pennsylvania was subject to the governor’s
reopening phase order, which “limited public gatherings . . . using a proscribed
occupancy calculator; mandated masks in all public spaces; and required
98
542 F. Supp. 3d 1245, 1261-62 (M.D. Ala. 2021).
99
Id. at 1256, 1273.
100
Id. at 1273.
101
Id. at 1275-77.
102
2021 WL 3852072 at *7 (W.D. Pa. 2021).
103
Id. at *1-2, 7.
25
Pennsylvanians to telework where doing so was feasible, among other things.”104
The court held the officials were entitled to qualified immunity because the officials
had not “violated a clearly established right of which a reasonable township official
would have been aware” when it prohibited in-person access to the meeting,
considering that virtual access was available.105 Courts have also found that
restrictions issued after this time period did not violate clearly established law.106
Courts have found that it is “irrational” or “implausible” that a reasonable
health official would have known that imposing various COVID-19 restrictions
violated Supreme Court precedent.107 While the Challenged Restrictions in this case
do not have a perfect parallel to those in other cases, courts nationwide have granted
104
Id. at *7.
105
Id.
106
Pleasant View Baptist Church v. Beshear, 2021 WL 4496386, at *1, 6 (E.D. Ky. 2021) (holding
governor’s executive order issued on November 18, 2020 which temporarily halted in person
classes for public and private schools, did not clearly violate established right because the Court
of Appeals denied the plaintiff’s motion for emergency relief pending appeal, in Danville Christian
Academy, Inc. v. Beshear, 208 L. Ed. 2d 504 (2020), the Supreme Court denied request for
emergency relief from the same executive order after the Sixth Circuit in Commonwealth v.
Beshear, 981 F.3d 505, (6th Cir. 2020) stayed the district court’s preliminary injunction, and
because of existing circuit split as to constitutionality of various COVID-19-related restrictions)
(citing Pleasant View Baptist Church v. Beshear, 838 F. App’x 936, 938 (6th Cir. 2020)); Mauro
v. Cuomo, 2023 WL 2403482, at *1-2, 5 (E.D.N.Y. 2023) (holding New York health advisory in
effect between March 24, 2020-March 4, 2021 prohibiting visitation in nursing homes except when
medically necessary did not violate plaintiff’s rights under the Federal Nursing Home Reform Act
because “regulations unambiguously contemplate[d] nursing home facilities placing restrictions
on visitation, including visits by immediate family.”).
107
Hinkle Fam. Fun Ctr., LLC v. Grisham, 586 F. Supp. 3d 1118, 1129 (“[I]t is simply irrational
to assert that a reasonable health official would have known that imposing business closings in
response to a pandemic clearly violated Supreme Court precedent.”) (quoting Bojicic v. DeWine,
569 F. Supp. 3d 669, 692 (N.D. Ohio 2021)); Bastian v. Lamont, 2022 WL 2477863, at *7 (D.
Conn. 2022) (“[I]t is implausible that ‘every reasonable official’ would have understood issuing
or enforcing public health policies violated the plaintiffs’ rights.”).
26
qualified immunity to state officials on motions to dismiss for a wide variety of
COVID-19 restrictions put in place during the pandemic.108 Considering that the
Governor was acting in response to a public health crisis “fraught with medical and
scientific uncertainties[,]” he was entitled to broad latitude when deciding how to
best limit the spread of the virus.
The Supreme Court did find in Roman Catholic Diocese of Brooklyn v. Cuomo
that the plaintiffs, a church and synagogue, established they would likely prevail in
proving that the occupancy limitations at public places of worship violated the Free
Exercise clause of the First Amendment.109 Governor Cuomo of New York issued
an executive order mandating a ten-person occupancy limit in Houses of Worship
located in “red zones,” and a twenty-five person occupancy limit for Houses of
Worship located in “orange zones.”110 The Court granted emergency injunctive
relief enjoining the enforcement of the order pending appeal in the United States
Court of Appeals for the Second Circuit.111 This decision, however, was issued on
108
See Mauro, 2023 WL 2403482, at *6 (collecting cases where federal courts have “granted state
officials qualified immunity at the motion to dismiss stage for restrictions implemented during the
COVID-19 pandemic.”).
109
Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020). Justices Gorsuch and
Kavanaugh issued individual concurring opinions. Id. at 69-75. Chief Justice Roberts filed a
dissenting opinion. Id. at 75-76. Justice Breyer filed a dissenting opinion which Justices
Sotomayor and Kagan joined. Id. at 76-78. Justice Sotomayor filed a separate dissenting opinion
which Justice Kagan also joined. Id. at 78-81.
110
Id. at 65-66.
111
Id. The Court held that the applicants demonstrated a likelihood of success on the merits
because the challenged restrictions were not “neutral” or of “general applicability” and therefore
would have to satisfy strict scrutiny. Id. at 66-67. The Court also found that further enforcement
27
November 25, 2020, and therefore did not clearly establish the law between March-
June 2020, when the Governor issued the Challenged Restrictions in this case.112 “In
other words, this decision could not have put Defendants on fair notice that the
occupancy restrictions on houses of worship were unconstitutional.”113
II. The Governor is immune from damages for alleged violations of
Plaintiffs’ rights under the Delaware Constitution pursuant to the State
Tort Claims Act.
A. The State Tort Claims Act
In Count I, Plaintiffs seek damages for alleged violations of their rights under
Article I, Section 1 of the Delaware Constitution.114 For the reasons that follow, the
Court finds that this claim for damages is barred by the STCA.
of the order would cause irreparable harm and that granting the application would not harm the
public interest. Id. at 67-68.
112
Id. See Case v. Ivey, 542 F. Supp. 3d 1245, 1275 (M.D. Ala. 2021).
113
Case, 542 F. Supp. 3d at 1275 (holding that the Alabama governor’s April 3, 2020 order did
not violate clearly established law despite its similarities with the restrictions at issue in Roman
Catholic Diocese of Brooklyn v. Cuomo, because this decision, which found such restrictions
violated the First Amendment, was issued months after the challenged restrictions in Case);
Murphy v. Lamont, 2022 WL 1082609, at *13-14 (D. Conn. 2022) (holding plaintiffs’ right to free
exercise was not clearly established when governor issued orders between March-April 2020
because the Supreme Court’s decision in Roman Catholic Dioceses of Brooklyn was not issued
until November 2020 and the Second Circuit’s decision in Agudath Israel of Am. v. Cuomo, 983
F.3d 620 (2d Cir. 2020) was not issued until December 2020).
114
Del. Const. art. I, § 1. “Although it is the duty of all persons frequently to assemble together
for the public worship of Almighty God; and piety and morality, on which the prosperity of
communities depends, are hereby promoted; yet no person shall or ought to be compelled to attend
any religious worship, to contribute to the erection or support of any place of worship, or to the
maintenance of any ministry, against his or her own free will and consent; and no power shall or
ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any
manner control the rights of conscience, in the free exercise of religious worship, nor a preference
given by law to any religious societies, denominations, or modes of worship.” Id.
28
Pursuant to the STCA, “State employees are exempt from civil liability for
acts or omissions taken in their capacity as such . . . .”115 The purpose of the STCA
is to “discourage law suits which might create a chilling effect on the ability of public
officials or employees to exercise their discretionary authority.”116 The STCA is not
only a shield from liability, but is also “an entitlement to avoid the burdens of
litigation.”117 The questions of qualified immunity, therefore, “must be resolved at
the earliest possible stage of litigation.”118 The United States Court of Appeals for
the Third Circuit in In re Montgomery County articulated the breadth of policy
concerns underlying sovereign immunity as follows:
[T]he right not to stand trial is based on far broader
concerns for avoiding the social costs of the underlying
litigation, and for ensuring and preserving the
effectiveness of government. The concern is that, absent
immunity from suit as well as liability, the attention of
public officials will be diverted from important public
issues. Additionally, qualified individuals might avoid
public service altogether, while the threat of litigation may
undermine the willingness of those who do serve to act
when action is necessary.119
115
Jackson v. Minner, 2013 WL 871784, at *5 (Del. Super. Mar. 1, 2013), aff’d, 74 A.3d 654 (Del.
2013).
116
Doe v. Cates, 499 A.2d 1175, 1180-81 (Del. 1985); Higgins v. Walls, 901 A.2d 122, 135 (Del.
Super. 2005); In Re Montgomery Cnty., 215 F.3d 367, 374–75 (3d Cir. 2000) (“The Supreme
Court’s decisions in this area make it clear that an immune official’s right to avoid trial is based
not on the individual’s desire to avoid the personal costs and aggravations of presenting a defense.
Rather, the right not to stand trial is based on far broader concerns for avoiding the social costs of
the underlying litigation, and for ensuring and preserving the effectiveness of government.” (citing
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)).
117
J.L. v. Barnes, 33 A.3d 902, 915 (Del. Super. 2011) (citing Curley v. Klem, 298 F.3d 271, 277
(3d Cir. 2002)).
118
Id. (citing Miller v. Clinton Cnty., 544 F.3d 542, 547 (3d Cir. 2008)).
119
In Re Montgomery County, 215 F.3d at 374–75 (internal citations omitted).
29
Pursuant to the STCA, there is a rebuttable presumption that an official’s
actions were: (1) discretionary; (2) undertaken in “good faith and in the belief that
the public interest would best be served thereby;” and (3) undertaken without gross
or wanton negligence.120 If the plaintiff can rebut one or more of these elements, the
official is not entitled to immunity under the STCA.
With respect to the first element, Plaintiffs must show that the official’s
actions were ministerial in nature and that the official did not have discretion when
undertaking the act under review. .121 “Whether an act is discretionary or ministerial
is a legal determination”122 and critical to determining if an official is entitled to
qualified immunity.123 “Discretionary acts are those that require some determination
or implementation which allows for a choice of methods, or stated differently, those
acts where there are no hard and fast rules as to a course of conduct that one must or
120
10 Del. C. § 4001. With respect to the first element, the official’s actions are discretionary if:
The act or omission complained of arose out of and in connection with the
performance of an official duty requiring a determination of policy, the
interpretation or enforcement of statutes, rules or regulations, the granting or
withholding of publicly created or regulated entitlement or privilege or any other
official duty involving the exercise of discretion on the part of the public officer,
employee or member, or anyone over whom the public officer, employee or
member shall have supervisory authority.
Id.
121
Jackson v. Minner, 2013 WL 871784, at *5-6 (Del. Super. Mar. 1, 2013), aff’d, 74 A.3d 654,
at *6 (Del. 2013); J.L., 33 A.3d at 914-15.
122
Wonnum v. Way, 2017 WL 3168968, at *3 (Del. Super. July 25, 2017).
123
J.L., 33 A.3d at 911 (stating whether an act is discretionary or ministerial is a “key question
relating to the determination of qualified immunity . . . .”).
30
must not take.”124 When the law provides only a general mandate governing actions
of officials, courts have found that they provide for discretionary decision making.125
Ministerial actions or failures to act “are those which are performed in a
prescribed manner, without using individual judgment.”126 Ministerial actions
“‘involve less in the way of personal decision or judgment,’ are more routine, and
typically involve conduct directed by mandatory rules or policies.”127 An act is more
likely to be ministerial if “the matter for which judgment is required has little bearing
of importance upon the validity of the act.”128 “[T]he Court may find that a duty is
ministerial, but how to carry out the duty is discretionary.”129
With respect to the second element, officials act in good faith when the act is
taken in furtherance of the public interest.130 For plaintiffs to rebut this presumption,
124
Jackson, 2013 WL 871784, at *6 (quoting Simms v. Christina Sch. Dist., 2004 WL 344015, at
*8 (Del. Super. Jan. 30, 2004).
125
See Id. at *5-6 (citing Higgins v. Walls, 901 A.2d 122, 143–44 (Del. Super. 2005) (citations
omitted)) (finding 11 Del. C. § 6504 granted Department of Corrections discretionary authority
over the care of inmates because it did not specify how or the manner in which the Department
must care for inmates); Simms 2004 WL 344015, at *8-9 (holding negligent supervision of
employees was discretionary where there was no “hard and fast rule” concerning the manner in
which supervisor was to supervise employee); see infra n.142 for additional examples.
126
Sadler-levoli v. Sutton Bus & Truck Co., Inc., 2013 WL 3010719, at *2 (Del. Super. June 4,
2013) (citing Simmons v. Delaware Tech. & Cmty. Coll., 2012 WL 1980409, at *4 (Del. Super.
May 17, 2012)) (“Ministerial acts, by contrast are those which a person performs in a prescribed
manner without regard to his own judgment concerning the act to be done.”) (citation omitted).
127
J.L., 33 A.3d at 914 (quoting Sussex Cnty. v. Morris, 610 A.2d 1354, 1359 (Del. 1992), then
citing Knoll v. Wright, 544 A.2d 265 (TABLE), 1988 WL 71446, at *1 (Del. Jun. 29, 1988).
128
Wonnum v. Way, 2017 WL 3168968, at *3 (Del. Super. July 25, 2017) (cleaned up).
129
Mathangani v. Hevelow, 2016 WL 3587192, at *4 (Del. Super. May 31, 2016) (citing Sadler-
levoli, 2013 WL 3010719, at *2).
130
Doe v. Cates, 499 A.2d 1175, n.5 (Del. 1985) (quoting 10 Del. C. § 4001) (“The act or omission
complained of was done in good faith and in the belief that the public interest would best be served
thereby.”); Jackson v. Minner, 2013 WL 871784, at *6 (Del. Super. Mar. 1, 2013).
31
they must demonstrate that the official’s actions were taken in bad faith. 131 “Bad
faith ‘contemplates a state of mind affirmatively operating with furtive design or ill
will.’ It is not simply ‘bad judgment or negligence, but rather it implies the
conscious doing of a wrong because of dishonest purpose or moral obliquity.’”132
With respect to the third element, the Supreme Court of Delaware has equated
“gross negligence” in the civil context as the functional equivalent of “criminal
negligence.”133 In the context of the STCA, the Supreme Court has described gross
negligence as “a higher level of negligence representing an extreme departure from
the ordinary standard of care”134 that “signifies more than ordinary inadvertence or
inattention.”135 For an official’s conduct to be wantonly negligent, “the conduct
must reflect a ‘conscious indifference’ or ‘I don’t care attitude.’”136
B. The Governor is immune from damages for alleged violations of the
Delaware Constitution because his actions were discretionary.
The Court finds as a matter of law that the Governor is immune from damages
pursuant to the STCA for actions taken pursuant to the Emergency Management Act
131
Doe, 499 A.2d at 1181 (holding the STCA intends for public officers to “be fully liable where
they exercised their authority in a grossly negligent, or bad faith manner.”); Jackson, 2013 WL
871784, at *6.
132
Jackson, 2013 WL 871784, at *7 (quoting Brittingham v. Bd. of Adjustment of City of Rehoboth
Beach, 2005 WL 1653979, at *1 (Del. Super. Apr. 26, 2005)).
133
Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
134
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990) (internal quotation marks and citation omitted).
135
Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1199 (Del. 2015) (internal
quotations omitted).
136
Hughes ex rel. Hughes, 950 A.2d 659 (TABLE), 2008 WL 2083150, at *3 (Del. 2008) (quoting
Cloroben Chem. Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983)).
32
because those actions were discretionary in nature, and made in good faith without
gross or wanton negligence. Plaintiff has not rebutted any of the three elements in
the STCA. Before addressing the nature of the Governor’s actions in response to
the pandemic, the Court will first address the language of the Emergency
Management Act itself.
1. The Emergency Management Act grants the Governor broad
discretionary authority to respond to state-wide emergencies.
The Supreme Court of Delaware held in Facer v. Carney that “the Governor’s
exercise of emergency powers is a discretionary act.”137 The broad language of the
Act necessitates that the Governor use his discretion when exercising his power to
respond to state-wide emergencies. Section 3115 of the Emergency Management
Act provides that the Governor “may issue, amend and rescind all necessary
executive orders, emergency orders, proclamations and regulations, which shall have
the force and effect of law.”138 Section 3115 further provides that the Governor may
“[t]ake such other actions as the Governor reasonably believes necessary to help
maintain life, health, property or public peace.”139 The italicized portions of the Act
quoted above do not indicate any specific acts that the Governor shall do or refrain
from doing to maintain the life or health of Delaware citizens. The Act does not
137
277 A.3d 937 (TABLE), 2022 WL 1561444, at *1 (Del. 2022).
138
20 Del. C. § 3115(b) (emphasis added).
139
Id. § 3116(b)(13) (emphasis added).
33
prescribe with any particularity the actions the Governor must take or is prohibited
from taking in response to a state of emergency. There were no “hard and fast rules”
prescribing how the Governor had to respond to this type of emergency when he
issued the Challenged Restrictions.140 Section 3115 permits the Governor to
exercise broad discretionary authority to take action to address dangers to the life
and health of Delaware’s citizens caused by emergencies or disasters.141
Such a broad grant of discretionary authority necessitates that the Governor
exercise his informed judgment to make policy decisions. Considering the nature of
state-wide emergencies, a statute that narrowly prescribes governors’ authority to
respond to such emergencies risks limiting their ability to respond effectively and
appropriately. State-wide emergencies can take nearly any form, are often not
140
Simms v. Christina Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Jan. 30, 2004) (finding
immediate supervisor’s conduct was discretionary because there were no “hard and fast” rules
concerning the manner in which he was to supervise a residential advisor).
141
Delaware courts have found that where laws, guidelines or policies employ broad language that
do not narrowly prescribe mandatory actions, they provide for discretionary acts. See, e.g.,
Mathangani v. Hevelow, 2016 WL 3587192, at *4 (Del. Super. May 31, 2016) (holding police
officer’s action setting up roadblock was discretionary because although there were guidelines in
place for road blocks there were no ministerial rules prescribing precisely how this action was to
be carried out and officer had to make quick decisions in course of police chase); Horvat v. State
Off. of Mgmt. & Budget, 2017 WL 5068574, at *8 (Del. Super. Oct. 30, 2017) (holding directive
that state personnel “shall perform all necessary tasks to ensure that the assigned areas are clear of
snow and ice in a timely manner” provided for discretionary acts because determining when and
how to plow the area and deciding whether sufficient walkways had been made for pedestrians
involves significant decision making and personal judgment); Sadler-levoli v. Sutton Bus & Truck
Co., Inc., 2013 WL 3010719, at *3 (Del. Super. June 4, 2013) (holding “method of supervision of
students on a school bus” and “actions that the District took or could have taken prior to students
embarking on the bus” were discretionary acts); for an example of a ministerial law, see Stevenson
v. Brandywine Sch. Dist., 1999 WL 742932, at *3 (Del. Super. July 9, 1999) (“[T]he decision of
how to secure a wheelchair-bound student in a school bus” was not discretionary in nature because
it involved a minimal degree of voluntariness and choice).
34
predictable or expected, may be unprecedented, or of a kind that a state has had no
experience with in recent history. Such emergencies may occur quickly and evolve
rapidly. The very nature of state-wide emergencies demands that officials be given
the flexibility to respond quickly in a manner that best mitigates and prevents further
harm, while taking into account countervailing interests. The actions required to
respond to emergencies are diverse and will necessarily vary based on the type of
emergency. The Governor’s authority under the Emergency Management Act is
broad so that he may best apply his well-reasoned judgment and tailor the State’s
response to a novel crisis without having to be overly concerned that his actions
might violate the law. The COVID-19 pandemic is precisely the type of
unprecedented, unpredictable emergency the Delaware legislature likely
contemplated when enacting this statute.
State courts around the country have found that their state’s emergency
managements acts, which have similar language to the Delaware statute, provided
government officials with broad discretion to implement orders to protect the health
and safety of its citizens from the COVID-19 pandemic.142
142
See, e.g., Grisham v. Romero, 483 P.3d 545, 558 (N.M. 2021) (holding governor and secretary
had substantial discretion under Public Health Emergency Response Act to issue restrictions on
businesses to protect against COVID-19 pandemic); Beshear v. Acree, 615 S. W. 3d 780, 812-13
(Ky. 2020) (finding statute granting governor authority to declare a state emergency was
necessarily broad, that it guided governor’s discretion, and was “appropriately flexible to address
a myriad of real-world events,” thus granting the governor the authority to issue orders to prevent
the spread of COVID-19); Desrosiers v. Governor, 158 N.E.3d 827, 835-36 (Mass. 2020) (holding
the Massachusetts Civil Defense Act which granted to the governor “all authority over persons
35
2. The Governor’s actions were discretionary.
The restrictions that the Governor put in place for Houses of Worship required
a determination of policy that balanced the need to reduce the spread of the
coronavirus while not unduly infringing upon the civil rights of Delaware’s
citizens.143 The threat that the COVID-19 pandemic posed to Delaware’s citizens
required the Governor to exercise his judgment and balance policy goals that at times
came into unavoidable conflict with each other.
Crafting policies that best reduced the spread of the virus while minimizing
collateral harm to civil liberties was an incredibly difficult balancing act for several
reasons. The nature of transmission of the virus created a formidable challenge to
balancing these policy concerns. When the Governor issued the Challenged
Restrictions, the CDC guidance advised that the virus spread primarily from one
currently infected person to another “who are in close contact with each other . . .
.”144 Specifically, the virus spread “from an infected person’s mouth or nose in small
and property, necessary or expedient for meeting” a state of emergency provided the governor with
expansive discretionary powers in the face of a declared state of emergency); Snell v. Walz, 2023
WL 4411059, at * 2, 5, 8 (Minn. Ct. App. July 10, 2023) (holding on remand that Minnesota
Emergency Management Act provided the governor with broad authority to declare a state of
emergency in response to the COVID-19 pandemic, because the act granted the governor authority
to declare a peacetime emergency when an act of nature endangers life and the authority to “make,
amend, and rescind the necessary orders and rules to carry out” the Act’s provisions).
143
Plaintiff has not attempted to argue that the Governor’s decisions to put in place the Challenged
Restrictions were ministerial in nature.
144
Coronavirus disease (COVID-19): How is it transmitted?, WORLD HEALTH ORG.,
https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-covid-19-how-
is-it-transmitted (last updated Dec. 23, 2021).
36
liquid particles when they cough, sneeze, speak, sing or breathe.”145 An individual’s
risk of contracting the virus increases with their proximity to infected individuals—
who may or may not know that they are infected—particularly in an indoor setting
with little or no ventilation. Applying this available knowledge about the virus’
transmission, the Governor put in place policies limiting individuals’ ability to
gather indoors beyond certain capacities to reduce the rate of transmission. These
policies could not completely avoid limiting individual’s ability to gather in large
groups and commune in the same manner as they had been before the pandemic.146
There are several other important reasons that made the Governor’s task of
mitigating the harm of the pandemic so difficult. COVID-19 was a novel and highly
infectious virus. The virus spread easily and quickly, evolving and mutating
rapidly.147 The variants of the virus differed in terms of degree of contagiousness
and virulence.148 In large part because COVID-19 was a novel virus to which no
one was immune in the beginning of the pandemic, the fatality rate was relatively
145
Id.146
See How to Protect Yourself and Others: Increasing Space and Distance, CTRS. FOR DISEASE
CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/prevention.html#space (last updated July 6, 2023).
147
Omicron, Delta, Alpha, and More: What To Know About the Coronavirus Variants, YALE
MED., https://www.yalemedicine.org/news/covid-19-variants-of-concern-omicron (Feb. 3, 2023)
(“One thing we know for sure about SARS-CoV-2, the virus that causes COVID-19, is that it is
changing constantly.”).
148
Id.37
high.149 Because the virus was novel, the medical and scientific communities could
only learn how to best prevent and treat the infection as the pandemic unfolded.150
Additionally, the U.S. had no recent experience with combating pandemics – the
U.S. had not had a major pandemic approximating the severity of the COVID-19
pandemic since the influenza pandemic of 1918-1919.151
Some degree of error on the part of the Governor and other state officials was
inevitable, but the Emergency Management Act permits a margin of error for the
circumstances the Governor faced. Considering the imperfect knowledge that the
Governor had when making these policy decisions, the nature of transmission, and
the need to reduce the alarming rate of infection, it was not practically possible for
the Governor to put in place policies that had no negative impact on individuals’
freedom of religion, speech, and assembly.
149
As of the issuance of this decision, over one million people in the U.S. have died from the
coronavirus. About COVID-19, CTRS. FOR DISEASE CONTROL & PREVENTION
https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19.html (last updated July
10, 2023).
150
On January 21, 2020, the CDC announced that the spread of the novel coronavirus “is a rapidly
evolving situation” and that it would “continue to update the public as circumstances warrant.”
First Travel-related Case of 2019 Novel Coronavirus Detected in United States, CTRS. FOR
DISEASE CONTROL & PREVENTION, https://www.cdc.gov/media/releases/2020/p0121-novel-
coronavirus-travel-case.html (last reviewed Jan. 21, 2020).
151
See 1918 Pandemic (H1N1 virus), CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html (last reviewed Mar. 20,
2019). The total deaths in the U.S. caused by the 1918 influenza pandemic has been estimated at
about 675,000. Id.Through August 12, 2023, 1,137,742 people in the U.S. have died from COVID-19. COVID Data
Tracker, CTRS. FOR DISEASE CONTROL & PREVENTION, https://covid.cdc.gov/covid-data-
tracker/#datatracker-home (last updated Aug. 21, 2023 at 5:00 PM).
38
3. The Governor’s actions were taken in good faith without gross or
wanton negligence.
As Plaintiffs have not pled that the Governor was not acting in good faith, or
that he acted with gross or wanton negligence, the Court finds that the Governor was
acting in good faith in furtherance of the public interest, and without gross or wanton
negligence.152
III. Plaintiffs’ request for a declaratory judgment is not justiciable.
Plaintiffs request that this Court issue a declaratory judgment that the
Challenged Restrictions violated their rights under the U.S. and Delaware
Constitutions. “[B]efore a court can adjudicate properly a dispute brought before
it[]” and decide whether a claim warrants judicial relief, including declaratory relief,
“Delaware law requires that a justiciable controversy exist.”153 Defendant argues
that two justiciability doctrines—the case or controversy requirement and the
standing requirement—are most salient and mandate the dismissal of this case. For
152
Plaintiffs only allege that the Governor “either knew or showed a deliberately indifferent,
negligent or reckless disregard” for whether the actions were constitutional.” Compl. ¶ 184. This
one sentence allegation does not come close to satisfying the standard for alleging gross or wanton
negligence. See, e.g., Hughes ex rel. Hughes, 950 A.2d 659 (TABLE), 2008 WL 2083150, at *3
(Del. 2008).
153
Crescent/Mach I Partners, L.P. v. Dr. Pepper Bottling Co. of Texas, 962 A.2d 205, 208 (Del.
2008) (quoting Warren v. Moore, 1994 WL 374333, at *2 (Del. Ch. July 6, 1994)); Gower v. Trux,
Inc., 2022 WL 534204, at *12 (Del. Ch. Feb. 23, 2022) (quoting Lynch v. Gonzalez, 2020 WL
5648567, at *6 (Del. Ch. Sept. 22, 2020)) (“The court’s power to issue declaratory judgments is
limited by the well-settled principle that a declaratory judgment must ‘address an actual
controversy between parties with affected rights.’”).
39
the reasons that follow, the complaint does not constitute a case or controversy and
plaintiffs have failed to establish standing.
A. There is no case or controversy.
With respect to the case or controversy requirement, Defendant argues that
Plaintiffs’ claims do not present an actual case or controversy because they do not
meet the second through fourth prongs of the Rollins test discussed infra.
1. The Declaratory Judgment Act
The Declaratory Judgment Act applies because Plaintiffs are seeking
declaratory relief.154 This Act grants to Delaware courts the discretion to render a
declaratory judgment.155 Courts may refuse to render declaratory relief if it “will not
terminate the uncertainty or controversy giving rise to the proceeding.”156 Delaware
courts will also not issue declaratory relief when it can have no practical effect on
the injury complained of.157 Courts also will not grant declaratory judgment “merely
to satisfy a party’s desire for an advisory opinion or an adjudication of hypothetical
154
10 Del. C. § 6501.
155
Id. § 6506; see Sprint Nextel Corp v. iPCS, Inc., 2008 WL 2737409, at *12-13 (Del. Ch. July
14, 2008).
156
§ 6506.
157
Intermec IP Corp. v. TransCore, LP, 2021 WL 4841131, at *2 (Del. Super. Oct. 18, 2021)
(citation omitted) (“Delaware courts do not address disagreements that have no significant current
impact.”) (internal quotations omitted). Delaware courts will not pronounce that past actions
“were right or wrong” when those actions have no “demonstrable continuing effect.” Spencer v.
Kemna, 523 U.S. 1, 18 (1998). Alleged “[p]ast exposure to illegal conduct does not in itself show
a present case or controversy . . . .” City of L.A. v. Lyons, 461 U.S. 95, 102 (1983) (finding past
subjection to allegedly illegal chokehold and party’s “assertion that he may again be subject to an
illegal chokehold does not create the actual controversy that must exist for a declaratory judgment
to be entered”). Id. at 105.
40
questions.”158 “Advisory opinions . . . put the court at risk of making incorrect
judgments on the basis of insufficiently developed facts, as well as prematurely
influencing the development of the law.”159
When plaintiffs seek declaratory relief against a potential future violation of
their rights under the U.S. Constitution, they “‘must demonstrate that the probability
of that future event occurring is real and substantial [and] of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.”160
2. The Rollins Test
To determine whether a case presents an actual case or controversy, Delaware
courts apply the four-part test first articulated by the Superior Court in Marshall v.
158
Sprint Nextel Corp, 2008 WL 2737409, at *12 (internal quotations omitted); Ackerman v.
Stemerman, 201 A.2d 173, 175 (Del. 1964) (“[T]he Declaratory Judgment Act is not to be used as
a means of eliciting advisory opinions from the courts. There must be in existence a factual
situation giving rise to immediate, or about to become immediate, controversy between the
parties.”); Facer v. Carney, 277 A.3d 937 (TABLE), 2022 WL 1561444, at *1 (Del. 2022)
(affirming trial court’s dismissal of writ of mandamus to compel Governor to cease all COVID-19
mandates because issuance of writ based on a hypothetical future pandemic would be tantamount
to an advisory opinion); Gower v. Trux, Inc., 2022 WL 534204, at *12 (Del. Ch. Feb. 23, 2022)
(quoting K&K Screw Prods., L.L.C. v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at *9 (Del.
Ch. Aug. 9, 2011)) (“The case or controversy requirement serves to ensure that an ‘application for
declaratory relief’ does not turn into ‘a contingent, speculative venture that would require the Court
to issue an advisory opinion.’”).
159
Manchester v. Narragansett Capital, Inc., 1989 WL 125190, at *10 (Del. Ch. Oct. 19, 1989)
(citing Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989)).
160
Anonymous v. State, 2000 WL 739252, at *4 (Del. Ch. June 1, 2004) (cleaned up).
41
Hill161 and adopted by the Supreme Court of Delaware in Rollins Int’l v. Int’l
Hydronics Corp.162 For a complaint to constitute an actual case or controversy:
(1) It must be a controversy involving the rights or other
legal relations of the party seeking declaratory relief;
(2) it must be a controversy in which the claim of right or
other legal interest is asserted against one who has an
interest in contesting the claim;
(3) the controversy must be between parties whose
interests are real and adverse; [and]
(4) the issue involved in the controversy must be ripe for
judicial determination163
Delaware courts have consistently applied the Rollins test to determine whether a
complaint constitutes an actual case or controversy.164 With respect to the second
prong, “[a]n actual controversy which justifies resort to the declaratory judgment act
exists where one side makes a claim of a present, specific right and the other side
makes an equally definite claim to the contrary.”165
With respect to the ripeness requirement in the fourth prong, Delaware courts
apply a framework whereby they “weigh the reasons ‘for not rendering a
161
93 A.2d 524, 525 (Del. Super. 1952).
162
303 A.2d 660, 662-63 (Del. 1973) (“We approve the prerequisites of an ‘actual controversy’
spelled out in Marshall v. Hill . . . .”).
163
Rollins Int’l, 303 A.2d at 662-63 (citing Marshall, 93 A.2d at 525).
164
See, e.g., The O’Brien Corp. v. Hunt-Wesson, Inc., 1999 WL 126996, at *3-4 (Del. Ch. Feb.
25, 1999); Stratton v. Am. Indep. Ins. Co., 2010 WL 3706617, at *8-9 (Del. Super. Sept. 16, 2010);
Sprint Nextel Corp v. iPCS, Inc., 2008 WL 2737409, at *13 (Del. Ch. July 14, 2008); Stroud v.
Milliken Enters., Inc., 552 A.2d 476, 479-80 (Del. 1989); K&K Screw Products, L.L.C. v. Emerick
Cap. Invs., Inc., 2011 WL 3505354, at *7 (Del. Ch. Aug. 9, 2011); Bessemer Tr. Co. of Delaware,
NA v. Wilson, 2011 WL 4484557, at *6 (Del. Ch. Sept. 28, 2011); Gower v. Trux, Inc., 2022 WL
534204, at *12 (Del. Ch. Feb. 23, 2022).
165
Clemente v. Greyhound Corp., 155 A.2d 316, 320 (Del. Super. 1959) (internal citation omitted).
42
hypothetical opinion . . . against the benefits to be derived from the rendering of a
declaratory judgment.’”166 This balancing of considerations necessarily requires
“the exercise of judicial discretion which should turn importantly upon a practical
evaluation of the circumstances present.”167 Simply put, for a case to be ripe, the
facts must be sufficiently developed for the court to resolve the matter. If the court
“would be forced to construct hypothetical factual situations on which [it] could then
rule” then the ripeness requirement is not met.168 Delaware courts address five
factors to guide their discretion in determining whether a matter is ripe for
adjudication:
(1) A practical evaluation of the legitimate interests of the
plaintiff in a prompt resolution of the question presented;
(2) the hardship that further delay may threaten;
(3) the prospect of future factual development that might
affect the determination made;
(4) the need to conserve scarce resources; and
(5) a due respect for identifiable policies of law touching
upon the subject matter in dispute.169
166
The O’Brien Corp., 1999 WL 126996, at *4 (quoting Stroud, 552 A.2d at 480); see also Stratton
v. Am. Indep. Ins. Co., 2010 WL 3706617, at *9 (Del. Super. Sept. 16, 2010) (quoting Playtex
Fam. Prods. Inc. v. St. Paul Surplus Lines Ins. Co., 564 A.2d 681, 687 (Del. Super. 1989)) (stating
courts must balance “the remedial interests of early resolution of an unripe controversy before
actual harm has occurred, and ‘those of judicial economy and legal stability which augur for
restraint.’”).
167
The O’Brien Corp., 1999 WL 126996 at, *4 (quoting Schick, Inc. v. ACTWU, 533 A.2d 1238,
1238–39 (Del. Ch. 1987)).
168
Playtex Fam. Prods. Inc., 564 A.2d at 688 (internal citation omitted).
169
The O’Brien Corp., 1999 WL 126996, at *4 (quoting Playtex Fam. Prods. 564 A.2d at 687–
88).
43
The Court finds that Plaintiffs have failed to establish an actual case or
controversy pursuant to the Rollins test and the ripeness factors quoted above. With
respect to the third Rollins prong, the interests of the parties are not currently
adverse. Defendant is currently taking no action to infringe upon those civil rights
Plaintiffs claim were harmed by the Challenged Restrictions. Additionally,
Plaintiffs admit that they are alleging only past exposure to conduct that violated
their rights, which is insufficient to demonstrate that there is a current case or
controversy entitling them to declaratory relief.170 Not only are none of the
Challenged Restrictions still in effect, but they have also not been in effect since
June 2, 2020, well before Plaintiffs transferred the action to this court. The court
will not issue declaratory relief if doing so does nothing more than “pronounc[e] that
past actions which have no demonstrable continuing effect were right or wrong.”171
The Court can have no influence on the alleged past harm caused by the Restrictions
when they have already been terminated years ago.
To issue declaratory relief at this juncture is tantamount to issuing an advisory
opinion because it would have no practical impact or effect on the status quo. Such
a declaration could only comment on whether the terminated restrictions caused past
harm, but it would do nothing to change what the Governor is currently doing or not
170
See City of L.A. v. Lyons, 461 U.S. 95, 105 (1983).
171
Spencer v. Kemna, 523 U.S. 1, 18 (1998).
44
doing. Because the Restrictions have been terminated and because the alleged harm
is not ongoing, the facts of this case are insufficiently developed. Adjudicating the
merits of this dispute “risk[s] . . . making incorrect judgments [and] . . . prematurely
influencing the development of the law.”172 Furthermore, any possibility that the
Challenged Restrictions or similar restrictions will be put in place again is
hypothetical and highly speculative.173
B. Plaintiffs do not have standing to bring their claims.
For a party to invoke their right to the court’s jurisdiction to redress a
grievance, they first must establish that they have standing.174 “Standing is a
threshold question that must be answered by a court affirmatively to ensure that the
litigation before the tribunal is a ‘case or controversy’ that is appropriate for the
172
Manchester v. Narragansett Capital, Inc., 1989 WL 125190, at *10 (Del. Ch. Oct. 19, 1989)
(citing Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989)).
173
The Court of Chancery similarly found in dismissing Plaintiffs’ claim for injunctive relief that
the possibility of future harm was not reasonably conceivable. Chancery Action, 285 A.3d at 1211
(“At present, it is not reasonably conceivable that the plaintiffs have a reasonable apprehension
that the Challenged Restrictions will be reimposed.”). Id. See also Clark v. Governor of New
Jersey, 53 F.4th 769, 778 (3d Cir. 2022). The Court of Appeals for the Third Circuit held that it
was not reasonably likely that “the pandemic such as it presented itself in 2020 and 2021” would
occur again. Id. The Court added:
[I]t is hard to imagine that we could once again face 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.
Id.174
Albence v. Higgin, 295 A.3d 1065, 1085-86 (Del. 2022).
45
exercise of the court’s judicial powers.”175 The plaintiff “bears the burden of
establishing the elements of standing.”176 Unless there is specific statutory authority
granting review, a plaintiff must establish the following elements of the standing
requirement:
(i) the plaintiff has suffered an ‘injury-in-fact,’ i.e., a
concrete and actual invasion of a legally protected interest;
(ii) there is a causal connection between the injury and the
conduct complained of; and
(iii) it is likely the injury will be redressed by a favorable
court decision.177
The key question regarding the redressability prong of the standing analysis
is whether “the effect of the court’s judgment on the defendant . . . redresses the
plaintiff’s injury, [either] directly or indirectly.”178 An injury is not remediable
unless the relief requested is likely to remedy the violation.179 If it is only speculative
that the requested relief will remedy the injury, this is insufficient to establish
redressability.180 “‘Relief that does not remedy the injury cannot bootstrap’ a claim
into court that the asserting party otherwise would have no standing to bring.” 181
175
Dover Hist. Soc. v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del. 2003).
176
Id. at 1109.
177
Albence, 295 A.3d at 1086 (quoting Reeder v. Wagner, 974 A.2d 858 (TABLE), 2009 WL
1525945, at *2 (Del. 2009)); O’neill v. Town of Middletown, 2006 WL 205071, at *28 (Del. Ch.
Jan. 18, 2006) (internal quotations omitted).
178
Case v. Ivey, 542 F. Supp. 3d 1245, 1263 (M.D. Ala. 2021) (cleaned up) (internal citation
omitted).
179
State v. MacColl, 2022 WL 2388397, at *8 (Del. Super. July 1, 2022) (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992) (cleaned up)).
180
Id.181
Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998)).
46
While the standing analysis pursuant to Delaware law is substantially similar to the
analysis of Article III standing in federal court, Delaware is not bound by the federal
rules of justiciability.182 Delaware’s standing requirement is applied for the purpose
of “‘self-restraint to avoid the rendering of advisory opinions at the behest of parties
who are ‘mere intermeddlers.’”183
Plaintiffs request that this Court issue a judgment declaring that the
Challenged Restrictions violated the First Amendment to the U.S. Constitution and
Article I, Section 1 of the Delaware Constitution. Defendant argues that such relief
cannot redress Plaintiffs’ alleged injuries. The Court agrees. Plaintiffs do not have
standing to bring their claims because they have not shown a likelihood that a
declaratory judgment issued by this Court could provide meaningful relief redressing
their alleged injuries.184 Even if the Restrictions did violate these laws, Plaintiffs
182
Albence, 295 A.3d at 1086.
183
Id. (quoting Dover Hist. Soc. v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1111 (Del. 2003)).
184
Although the Court is adjudicating the standing issue pursuant to Rule 12(b)(1), the Court finds
that Plaintiffs would lack standing regardless of whether it was evaluated under 12(b)(1) or
12(b)(6). Many federal courts have found that plaintiffs have lacked standing to bring a claim
challenging COVID-19 restrictions that were terminated before the complaint was filed. See, e.g.,
Case, 542 F. Supp. 3d at 1263-64 (holding an injunction prohibiting defendants from enforcing a
provision that had already expired before plaintiffs filed their complaint would not redress
plaintiffs injuries); Smith v. Ivey, 501 F. Supp. 3d 1248, 1262–63 (M.D. Ala. 2020) (finding court
could not redress plaintiff’s injuries allegedly caused by challenged action because it was not in
effect when plaintiff filed suit); Let Them Play MN v. Walz, 556 F. Supp. 3d 968, 976-77 (D. Minn.
2021) (holding plaintiffs did not establish redressable injury necessary for declaratory relief
because the three complained-of restrictions were no longer in effect); Hotze v. Abbott, 2021 WL
3611048, at *4 (S.D. Tex. July 23, 2021) (holding plaintiffs could not establish standing in part
because complained-of orders were superseded by later orders and thus they could not demonstrate
a continuing injury or threatened future injury necessary to merit declaratory relief).
47
have failed to show how such a declaratory judgment would alter the status quo when
the Restrictions have already been lifted. Plaintiffs’ right to freedom of speech,
religion, and assembly will not be restored or further protected by such relief. The
Court cannot permit this case to move forward solely on the possibility that it may
bring Plaintiffs satisfaction to receive a declaration that the Governor’s conduct was
unlawful.185 Because a declaratory judgment would not redress Plaintiffs’ alleged
injuries, Plaintiffs do not have standing to bring their claim for declaratory relief.
C. The doctrine of mootness and its exceptions are inapplicable to Plaintiffs’
claims.
Plaintiff argues that while their claim might be moot because the Challenged
Restrictions have been lifted, that various exceptions to the mootness doctrine apply.
The Court will not address the exceptions to the mootness doctrine that Plaintiffs
raise because this doctrine does not apply in the first instance. Mootness is a
justiciability doctrine that addresses cases that may have been justiciable when filed,
but have lost their justiciability at some point during the litigation. 186 For this
doctrine to apply, therefore, Plaintiffs would need to show their claims were
justiciable when filed. Plaintiffs would need to show that they had standing when
185
Sprint Nextel Corp v. iPCS, Inc., 2008 WL 2737409, at *12 (Del. Ch. July 14, 2008) (cleaned
up) (stating declaratory judgments will not be granted “merely to satisfy a party’s desire for an
advisory opinion or an adjudication of hypothetical questions.”).
186
Gen. Motors Corp. v. New Castle Cnty., 701 A.2d 819, 823 (Del. 1997) (stating “[a] proceeding
may become moot in one of two ways: if the legal issue in dispute is no longer amenable to a
judicial resolution; or, if a party has been divested of standing.”).
48
they filed the complaint.187 As explained above, this case was not justiciable when
it was filed because Plaintiffs did not have standing when it was filed. Because
Plaintiffs do not have standing, the doctrine of mootness is inapplicable.188
CONCLUSION
In conclusion, Defendant’s motion to dismiss is GRANTED.
Plaintiffs’ claims for nominal and compensatory damages for their claims
under the U.S. and Delaware Constitutions are dismissed on the basis of the qualified
immunity doctrine and the State Tort Claims Act, respectively.
Plaintiffs’ claims for declaratory relief under the U.S. and Delaware
Constitutions are dismissed because they have not established a current case or
controversy, and have not established such relief can redress their alleged injuries.
IT IS SO ORDERED.
187
See Dover Hist. Soc., 838 A.2d 1103, 1110 (Del. 2003).
188
Case, 542 F. Supp. 3d at 1264 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 170 (2000)) (“[I]f a plaintiff lacks standing at the time the action commences,
the fact that the dispute is capable of repetition yet evading review will not entitle the complainant
to a federal judicial forum.”).
49