Opinion
SC 166011 COA 361206
11-01-2024
STACEY NICOLE BAKER, Individually and as Next Friend of EB, Minor, STEFANIE BRULE, Individually and as Next Friend of JB and NB, Minors, ANGELA ROBERTS, Individually and as Next Friend of TJR, Minor, and KAREN GARLANGER, Individually and as Next Friend of ES, Plaintiffs-Appellants, v. WATERVLIET PUBLIC SCHOOLS, RIC SEAGER, WATERVLIET BOARD OF EDUCATION, LAKESHORE PUBLIC SCHOOLS, GREG EDING, LAKESHORE PUBLIC SCHOOLS BOARD OF EDUCATION, ST. JOSEPH PUBLIC SCHOOLS, JENNY FEE, and ST. JOSEPH PUBLIC SCHOOLS BOARD OF EDUCATION, Defendants-Appellees.
Berrien CC: 2022-000014-CZ.
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices.
ORDER
On order of the Court, the application for leave to appeal the May 4, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
I disagree with the Court's decision to deny leave in this case. Plaintiffs have made a strong argument that the Court of Appeals incorrectly held that their challenges to school mask mandates are moot. This case involves a question of significant public interest- whether the defendant school districts had the authority to issue mask mandates. Although the mandates were rescinded during the pendency of the litigation, exceptions to our general mootness doctrine may apply here. Rather than denying leave, I would have granted leave to appeal for this case to be heard with T & V Assoc, Inc v Dir of Dep't of Health & Human Servs, Mich. (2024) (Docket No. 165998).
In the fall of 2021, the Watervliet, Lakeshore, and St. Joseph school districts implemented mask mandates for students in response to the COVID-19 pandemic. In January 2022, plaintiffs, who are students and parents of students in the school districts, filed a lawsuit against the districts, schools boards, and superintendents, seeking declaratory relief that the school districts were not authorized to issue the mask mandates and a restraining order to prevent future mask mandates. Defendants rescinded the mask mandates before the case could be decided on the merits, and the trial court granted summary disposition in favor of defendants under MCR 2.116(C)(4) and (8), concluding that the case was moot. The Court of Appeals affirmed in an unpublished opinion. Plaintiffs sought leave to appeal in this Court.
"As a general rule, this Court will not entertain moot issues or decide moot cases." TM v MZ, 501 Mich. 312, 317 (2018) (cleaned up). But "the burden of demonstrating mootness is a 'heavy one.'" MGM Grand Detroit, LLC v Community Coalition for Empowerment Inc, 465 Mich. 303, 306 (2001) (citation omitted). And, as discussed in my dissent in T & V Assoc, Mich. at, there are exceptions to the general mootness rule.
First, "even though an issue is moot, it is nevertheless justiciable if the issue is one of public significance that is likely to recur, yet may evade judicial review." People v Richmond, 486 Mich. 29, 37 (2010). Plaintiffs have made a strong argument that the exception should apply here. There is a reasonable expectation that defendants will impose a similar mask mandate on students in the future. As recently as this past school year, school districts across the nation imposed mask mandates. See, e.g., Treisman, NPR, As U.S. COVID Hospitalizations Rise, Some Places Are Bringing Mask Mandates Back (August 31, 2023) <https://www.npr.org/2023/08/31/1196943567/covid-cases-surge-mask-mandates> (accessed September 30, 2024) [https://perma.cc/Q8QG-Z9WT]; Moniuszko, CBS News, Is Masking Coming Back? As New COVID Variants Emerge, Here's What Experts Say (August 25, 2023) <https://www.cbsnews.com/news/is-masking-coming-back-covid-variants-experts-2023/> (accessed September 30, 2024) [https://perma.cc/22Z6-GSGZ]; Rahman, Newsweek, Mask Mandate Update: Full List of States with Some Restrictions in Place (September 21, 2023) <https://www.newsweek.com/mask-mandate-update-states-restrictions-1828844> (accessed September 30, 2024) [https://perma.cc/23QG-PEPL]; Pisano, Western Mass. News, Springfield Public Schools Prepare After Recent Uptick in COVID-19 Cases (January 2, 2024) <https://www.westernmassnews.com/2024/01/03/springfield-public-schools-prepare-following-uptick-covid-19-cases/> (accessed September 30, 2024) [https://perma.cc/DY4L-APS3]. And it is possible that the emergence of new diseases could be cited to justify mask mandates at some point in the future.
Additionally, whether this exception applies may depend on whether the same complaining party must be likely to be subjected to the action at issue in the future. This question is among those that I would consider in this case. See also T & V Assoc, __ Mich. at __ (Viviano, J., dissenting).
Second, I would consider whether to recognize the "voluntary cessation" doctrine. See United States v W T Grant Co, 345 U.S. 629, 632 (1953) ("[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot."). Without a determination on the merits of plaintiffs' claims, the defendant school districts are" 'free to return to [their] old ways,'" id. at __ (citations omitted), and reimpose mask mandates on students. Plaintiffs' arguments regarding the voluntary cessation doctrine warrant closer review.
In considering this exception, one question is whether the exception only applies if the voluntary cessation occurred in order to evade judicial review. See T & V Assoc, __ Mich. at __ (Viviano, J., dissenting). Even if such a requirement exists, there has not been any factual determination regarding defendants' motive for rescinding the mask mandates before the case could be decided on the merits.
Like T & V Assoc, this case involves important substantive issues. Rather than denying leave, I would grant leave to appeal and hear the case along with T & V Assoc. I respectfully dissent.