Clark v. Governor of N.J.

Clark v. Governor of N.J.

Opinion

 [*771]  RENDELL, Circuit Judge.

Once again, we have been asked to decide whether a challenge to long defunct COVID-19 pandemic restrictions presents a justiciable controversy.² Because the in-person gathering limits complained of here were rescinded over two years ago and it is absolutely clear their return could not reasonably be expected to recur, we [**2]  hold that the case is moot.

I. Background

In March 2020, New Jersey Governor Philip Murphy took a series of measures to respond to the spread of COVID-19.³ In Executive Order ("EO") 103, he declared a state of emergency pursuant to the Civilian Defense and Disaster Control Act, N.J. Stat. Ann. § A:9-33, et seq., as well as a public health emergency pursuant to the Emergency Health Powers Act, N.J. Stat. Ann. § 26:13-1, N.J. Stat. Ann. These declarations empowered the Governor to issue follow-up orders addressing the pandemic, an authority he went on to use.

On March 21, Governor Murphy issued EO 107, which, inter alia, prohibited in-person gatherings and ordered New Jersey residents to "remain home or at their place of residence," except for certain approved purposes, such as an "educational, political, or religious reason." See Solid Rock Baptist Church v. Murphy, 480 F. Supp. 3d 585, 589 (D.N.J. Aug. 20, 2020) (citing N.J. Exec. Order 107 ¶ 2 (Mar. 21, 2020)) ("Solid Rock I"). EO 107 excepted certain categories of businesses deemed "essential," including grocery and liquor stores, which could continue to welcome any number of persons (consistent with social distancing guidelines). Id. at 588-89. Violations of EO 107's proscriptions were enforceable by criminal prosecution for "disorderly conduct," N.J. Stat. Ann. § App. A:9-49. Further, the order granted Defendant-Appellee Colonel Patrick Callahan, Superintendent of the State Police, "discretion to make clarifications [**3]  and issue [related] orders[.]" N.J. Exec. Order 107 ¶ 6 (Mar. 21, 2020). He exercised that power the same day EO 107 was signed, declaring in Administrative Order No. 2020-4 that gatherings of ten or fewer persons were presumptively permitted.⁴ Neither EO 107 nor AO 2020-4 contained an exception for religious worship gatherings  [*772]  or other First Amendment-protected activity.

Plaintiff-Appellants are two New Jersey-based, Christian congregations, Solid Rock Baptist Church and Bible Baptist Church of Clementon, and their respective pastors, Andrew Reese and (as co-pastors) Charles Clark III and Charles Clark, Jr. Appellants believe that the Holy Bible requires them to gather for in-person worship services. Although both congregations switched to online services in the wake of the Governor's gathering restrictions, by late May 2020 they had resolved to defy those rules and return to in-person worship. After informing state authorities of their intention to do so, the two churches held services with more than ten persons in attendance. Local police, executive officials, and prosecutors—several of whom are named Defendant-Appellees⁵—then participated in issuing and pursuing criminal complaints against the [**4]  Pastors for their violations of EO 107 and AO 2020-4.

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