Givens v. Newsom

Opinion

RON GIVENS, et al., No. 2:20-cv-00852-JAM-CKD Plaintiffs, v. ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER GAVIN NEWSOM, et al. JURISDICTION Defendants. This matter is before the Court on Plaintiffs’ motion for summary judgment (“MSJ”) and Defendants’ cross-motion for summary judgment (“Cross-MSJ”). See MSJ, ECF No. 92; Cross-MSJ, ECF No. 101. Plaintiffs oppose Defendants’ cross-motion for summary judgment. See Pl.’s Opp’n, ECF No. 106. Defendants replied. See Reply, ECF No. 111. Plaintiffs filed a surreply with leave of the Court. See Surreply, ECF No. 114. For the reasons set forth below, the Court will dismiss this action in its entirety for lack of subject matter jurisdiction.1

1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for August 9, 2022. On March 4, 2020, California Governor Gavin Newsom declared a State of Emergency in response to the COVID-19 pandemic. Pls.’ Statement of Undisputed Facts (“PSUF”) ¶ 1, ECF No. 92-2. Two weeks later, on March 19, 2020, Governor Newsom issued Executive Order N-33-20 (the “Stay-at-Home Order”) directing all California residents to heed the directives of the State Public Health Officer, who directed residents “to stay home or at their place of residence.” Id. ¶¶ 2-4. The Stay-at-Home Order carved out an exception for activities “needed to maintain the continuity of operations of federal critical infrastructure services,” the specifics of which were left to the discretion of the California Department of Public Health (“CDPH”). Id. ¶ 6. On March 22, 2020, the CDPH promulgated a list of “Essential Critical Infrastructure Workers,” which included over 150 occupations from thirteen sectors of the economy to be exempt from the Stay-at- Home Order. Id. ¶¶ 7-8. The rest of California was directed to stay home—and so the shut-down began. Shortly after the Stay-at-Home Order issued, Plaintiffs sought to hold demonstrations at the State Capitol Grounds. Id. ¶¶ 18-19, 23. They submitted permitting applications to the California Highway Patrol (“CHP”) but were denied permission to use the Grounds on April 24, 2020. Id. ¶¶ 21, 24. Plaintiffs subsequently brought suit in this Court seeking an order and judgment declaring the Stay-at-Home Order unconstitutional under both the U.S. Constitution and the California Constitution. See Complaint (“Compl.”), ECF No. 1. Since Plaintiffs commenced this action, the CHP has taken several approaches to whether and how it permits demonstrations over the course of the pandemic. A month after the Stay-at-Home Order first issued in March 2020, the CHP denied all applications for permits from April 21st to May 24th of that year. PSUF ¶¶ 15, 25. Starting May 25, 2020, the CHP opened Capitol Grounds for demonstrations but imposed an attendance cap of 100 persons on all permit applicants. Id. ¶ 25. The CHP then lifted this attendance cap for a brief three-month window from June to September. Id. ¶¶ 26-27. On September 25, 2020, the CHP again imposed an attendance cap, but increased the number of attendees to up to 250 persons. Id. ¶ 27. The CHP lifted this 250-persons cap on June 16, 2021, five days after Governor Newsom rescinded the Stay-at-Home Order. Id. ¶¶ 28-29. It is undisputed that the Capitol Grounds has been fully open for demonstrations since that time. MSJ at 5; Cross-MSJ at 8. This Court dismissed Plaintiffs’ state law claims in proceedings held before the Court on Defendants’ first motion to dismiss at ECF No. 33. See Transcript of Proceedings held on July 14, 2020, ECF No. 45. What remains before the Court on parties’ cross-motions for summary judgment are Plaintiffs’ claims under the First and Fourteenth Amendments of the U.S. Constitution for alleged violations of Plaintiffs’ rights to free speech, free assembly, and petition. See Compl. A. Judicial Notice Defendants request the Court take judicial notice of seventeen exhibits. See Defs.’ Req. for Jud. Notice (“RJN”), ECF No. 100. Plaintiffs’ request the Court take judicial notice of two exhibits. See Pls.’ Req. for Jud. Notice (“PRJN”), ECF No. 107. All of the exhibits are matters of public record and therefore proper subjects for judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Accordingly, the Court GRANTS Defendants’ request for judicial notice of Exhibits 1-17. The Court also GRANTS Plaintiffs’ request for judicial notice of Exhibits A-B. The Court’s judicial notice, however, extends only to the existence of these documents and not to their substance, which may contain disputed or irrelevant facts. Lee, 250, F.3d at 690. B. Analysis Although parties seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, the State’s briefs raised a serious question about the Court’s subject matter jurisdiction. In support of its contention that this action is now moot, the State filed a notice of supplemental authority regarding new Ninth Circuit precedent, Brach v. Newsom, 38 F.4th 6 (9th Cir. 2022). See Defs.’ Notice of Suppl. Authority, ECF No. 109. Plaintiffs then filed a surreply briefing the Court on the applicability of Brach. Because federal subject matter jurisdiction concerns the power of a court to hear a case, this Court has a continuing duty to reaffirm its jurisdictional power whenever the issue arises. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514 (1869). The Court thus revisits the issue of mootness. 1. Mootness The threshold and ultimately only question before the Court is whether this case is moot. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (internal citations omitted). The party asserting mootness bears the “heavy burden” to show that “the challenged conduct cannot reasonably be expected to reoccur.” Id. The State argues that Brach controls this case. Reply at 2. In Brach, the Ninth Circuit considered a constitutional challenge to California’s COVID restrictions on in-person schooling, which, similar to here, had been rescinded just under a year before the court’s opinion issued. Brach, 38 F.4th at 11. Sitting en banc, the Ninth Circuit rejected plaintiffs’ argument that similar restrictions could be reimposed if pandemic conditions worsened. The Ninth Circuit held that, because the challenged restriction had been rescinded and because plaintiffs sought only declaratory and injunctive relief, which could no longer be granted, the case was no longer a “live controversy necessary for Article III jurisdiction.” Brach, 38 F.4th at 9. The same is true of this case. The parties agree that there has been no state-imposed prohibitions on demonstrations since May 25,2020 and no COVID-related attendance caps since June 16, 2021. Reply at 2. The Stay-at-Home Order giving rise to the challenged conduct was rescinded over a year ago. PSUF ¶ 29. Further, like the plaintiffs in Brach, Plaintiffs do not seek damages but only a declaratory judgment that the Stay-at- Home Order is unconstitutional. See Compl. Accordingly, because “there is no longer any state order for the court to declare unconstitutional or to enjoin [, it] could not be clearer that this case is moot.” Brach citing Already, LLC. Nike, Inc., 568 U.S. 85, 91 (2013). Plaintiffs, however, argue their case survives under two exceptions to mootness: the voluntary cessation exception and the capable of repetition yet evading review exception. Surreply at 1. For the reasons given below, neither carry the day. 2. Voluntary Cessation Exception “[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Already, 568 U.S. at 91. As the Supreme Court instructed, a party “should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). The party asserting mootness must show that “the challenged behavior cannot reasonably be expected to recur.” Already, 568 U.S. at 96. While the Court may “treat the voluntary cessation of challenged conduct by government officials with more solicitude . . . than similar actions by private parties,” the Court must still diligently “probe the record to determine whether the government has met its burden, even as [the Court grants] it a presumption of good faith.” Bell v. City of Boise, 709 F.3d 890, 898-99, n.13, (9th Cir. 2013); Rosebrock v. Mathis, 745 F.3d 963, 971-72 (9th Cir. 2014). The Court has considered the voluntary cessation exception twice before. In June 2020, the Court declined to find mootness under this exception because the challenged Stay-at-Home Order was still in effect. See Transcript of Proceedings Held July 14, 2020, at 15:3-5, ECF No. 45 (noting “even though the Governor has now proclaimed that permits can be issued for outdoor events, [the] original [Stay-at-Home Order] is still on the books.” After the Stay-at-Home Order was rescinded, the State again raised the issue of mootness, but the Court declined to dismiss Plaintiffs’ suit, finding that the State failed to show “that the challenged conduct cannot possibly reoccur,” because “Plaintiffs remain under threat that Defendants will reinstate the challenged restrictions as the COVID-19 pandemic persists.” See Order Denying Defs.’ Second Mot. to Dismiss at 6, ECF No. 86. At that time, “the only certainty about the future course of this pandemic [was] uncertainty.” Jones v. Cuomo, 542 F. Supp. 3d 207, 215-216 (S.D.N.Y. 2021) The Court no longer holds this view. The intervening year has shown that although the number of COVID-19 cases continue to rise and fall as new variants emerge, the State has not returned to the restrictions it imposed at the start of the pandemic. Advances such as vaccines, whose efficacy has been challenged and tested by time, have changed the State’s response. Significantly, California permitted demonstrations on Capitol Grounds “throughout the surge of the Omicron COVID-19 variant, even while the State’s case count soared well past numbers reached early in the pandemic,” suggesting that California remained committed to this course in spite of COVID-19’s continuing challenges. Brach, 38 F.4th at 14. As the Brach court noted, “[i]t is thus apparent that, as in other jurisdictions, the ‘availability of vaccines and other measures to combat the virus have led to a significant change in the relevant circumstances.’” Id. (citing Lighthouse Fellowship Church v. Northam, 20 F.4th 157, 162-64 (4th Cir. 2021)). Plaintiffs argue that Brach should be followed in the case at bar, because “the school closure executive order contained both a sunset provision and a clause that would self-repeal on a specific date.” Surreply at 1. Plaintiffs contend that because the Stay-at-Home Order lacks similar provisions, this case remains a live controversy under the voluntary cessation exception. Id. The Court disagrees. While the Ninth Circuit noted that the inclusion of a sunset provision “strengthen[ed] California’s hand,” the Ninth Circuit did not rely exclusively on the sunset provision in its analysis. Brach, 38 F.4th at 12-15. Its chief concern was whether, in light of changed circumstances, the State demonstrated a commitment to its course of action such that the challenged conduct cannot reasonably be expected to recur. Brach, 38 F.4th at 14. As the State points out, “the State’s pandemic response framework has moved away from closures and capacity restrictions as tool [sic] to combat the spread of disease.” Cross-MSJ at 30. The State’s new “SMARTER plan, an acronym that stands for Shots, Masks, Awareness, Readiness, Testing, Education, and Rx,” focuses on increasing vaccination rates, monitoring COVID case numbers, and stockpiling masks and treatment medications. Id.; Pls.’ Response to Defs.’ Statement of Undisputed Facts (“DSUF”) ¶ 24, ECF No. 108. Significantly, the SMARTER Plan does not contemplate reimposing broad-based bans on gatherings similar to the one challenged here. Cross-MSJ at 30. Plaintiffs do not dispute this characterization of the State’s current COVID plan, but they maintain that the plan is not a “comprehensive representation of California’s pandemic strategy in the future, should COVID-19 numbers spike again.” DSUF ¶ 24. As such, Plaintiffs argue, “the Governor’s continuing authority [to reimpose restrictions] looms in a way it did not in Brach.” Surreply at 3. Again, the Court disagrees. As the Brach court reasoned, “the Governor’s continuing authority to close schools . . . is by no means dispositive.” Brach, 38 F.4th at 14. “[T]he mere power to reenact a challenged policy is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that the challenged [policy] will likely be reenacted.” Id. (internal citations omitted). The fact that “the Governor has the power to issue executive orders cannot itself be enough to skirt mootness, because then no suit against the government would ever be moot.” Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021).” Given that the public health landscape has fundamentally changed since the beginning of the pandemic and given the uncontroverted facts about the State’s current COVID response, the Court finds that the State has carried its burden of establishing there is no reasonable expectation that the challenged conduct will recur. Much like California’s approach to school reopening, the CHP’s approach to demonstration permitting has been “steady and consistent.” Brach, 38 F.4th at 15. Since May 25, 2020, the CHP has gradually lifted its restrictions and kept the Grounds open for demonstrations even during the Omicron surge. In the absence of countervailing facts, the Governor’s authority to reimpose restrictions amounts to “a mere physical or theoretical possibility,” which cannot support the Court’s jurisdiction. Murphy v. Hunt, 455 U.S. 478, 482 (1982). Accordingly, the Court concludes the voluntary cessation exception does not apply. 3. Capable of Repetition yet Evading Review The Court also finds the capable of repetition yet evading review exception does not apply. This exception applies only in extraordinary cases where “(1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reasonable expectation that the plaintiffs will be subjected to it again.” Alaska Ctr. For Evn’t v. U.S. Forest Serv., 189 F.3d 851, 854-55 (9th Cir. 1999). As Plaintiffs observe, the Brach Court instructs that “the two exceptions—voluntary cessation and capability of repetition— are ‘analogous’ to one another.” Surreply at 3, quoting Brach, 38 F.4th at 15. The Brach court’s “rationale for rejecting [the capable of repetition exception] mirrors much of [its] analysis regarding the voluntary cessation exception.” Id. The same is true here. Because the challenged Stay-at-Home ee nee en en on nnn EO EOE DI ee eee

Order has long been rescinded, and because the State’s SMARTER plan demonstrates no intention of returning to the broad ban on outdoor gatherings that characterized California’s initial pandemic response, there is no reasonable expectation that Plaintiffs will be subjected to the challenged conduct again. The “reasonable expectation” prong of the Court’s analysis has not been met. Alaska Ctr. For Evn’t, 189 F.3d at 854-55. As such, the Court finds the capable of repetition yet evading review exception does not apply. This case is moot. Til. ORDER For the reasons set forth above, the Court DISMISSES Plaintiffs’ Complaint in its entirety for lack of subject matter jurisdiction. The Court further DENIES Plaintiff’s motion for summary judgment and Defendants’ cross-motion for summary judgment as MOOT. The Clerk of the Court is directed to CLOSE this case. Dated: September 19, 2022 cp, JOHN A. MENDEZ SENIOR UNITED*STATES DISTRICT JUDGE 11