Roman Catholic Diocese Part IV: Governor Cuomo’s Orders are Capable of Repetition, and Will Not Escape Review
This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause.
Earlier this week, I described Governor Cuomo’s microcluster regime as a whac-a-mole game. Whenever any responsive pleading is due, the City magically finds that the challenged restrictions can be lifted. I suggested that the Court should rely on the capable-of-repetition-yet-evading-review standard.
Diocese does not adopt this standard expressly, but it does hint at it.
First, the Court says this controversy is not moot.
There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particularareas without prior notice.
The Court does not use the phrase “capable of repetition yet evading review,” but the first cited case, FEC v. WRTL, does use that phrase.
As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. Fed. Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462, 127 S. Ct. 2652, 2662, 168 L. Ed. 2d 329 (2007)
The other cited case, Friends of the Earth, relies on the related voluntary cessation doctrine.
In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708, 145 L. Ed. 2d 610 (2000)
Going forward, district courts now have a green light to use “capable of repetition yet evading review” and “voluntary cessation” where the Government modifies the COVID-19 regime at the eleventh hour.
Second, the Court explains why the Governor’s last-minute modification does not end the case:
If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief canbe obtained. At most Catholic churches, Mass is celebrated daily, and “Orthodox Jews pray in [Agudath Israel’s] synagogues every day.” Application in No. 20A90, at 4. More
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