Givens v. Newsom

• Court: District Court, E.D. California
• Decided: September 20, 2022
• Docket: 2:20-cv-00852
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RON GIVENS, et al., No. 2:20-cv-00852-JAM-CKD 12 Plaintiffs, 13 v. ORDER DISMISSING ACTION FOR LACK OF SUBJECT MATTER 14 GAVIN NEWSOM, et al. JURISDICTION 15 Defendants. 16 17 This matter is before the Court on Plaintiffs’ motion for 18 summary judgment (“MSJ”) and Defendants’ cross-motion for summary 19 judgment (“Cross-MSJ”). See MSJ, ECF No. 92; Cross-MSJ, ECF 20 No. 101. Plaintiffs oppose Defendants’ cross-motion for summary 21 judgment. See Pl.’s Opp’n, ECF No. 106. Defendants replied. 22 See Reply, ECF No. 111. Plaintiffs filed a surreply with leave 23 of the Court. See Surreply, ECF No. 114. For the reasons set 24 forth below, the Court will dismiss this action in its entirety 25 for lack of subject matter jurisdiction.1 26

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

1 Order has long been rescinded, and because the State’s SMARTER 2 | plan demonstrates no intention of returning to the broad ban on 3 outdoor gatherings that characterized California’s initial 4 pandemic response, there is no reasonable expectation that 5 Plaintiffs will be subjected to the challenged conduct again. 6 The “reasonable expectation” prong of the Court’s analysis has 7 not been met. Alaska Ctr. For Evn’t, 189 F.3d at 854-55. As 8 such, the Court finds the capable of repetition yet evading 9 review exception does not apply. This case is moot. 10 Til. ORDER 11 For the reasons set forth above, the Court DISMISSES 12 Plaintiffs’ Complaint in its entirety for lack of subject matter 13 jurisdiction. The Court further DENIES Plaintiff’s motion for 14 summary judgment and Defendants’ cross-motion for summary 15 judgment as MOOT. The Clerk of the Court is directed to CLOSE 16 | this case. 17 IT IS SO ORDERED. 18 Dated: September 19, 2022 19 cp, JOHN A. MENDEZ 21 SENIOR UNITED*STATES DISTRICT JUDGE 22 23 24 25 26 27 28 11