In re Covid-Related Restrictions on Religious Services

• Court: Supreme Court of Delaware
• Decided: August 1, 2024
• Docket: 354, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

§ No. 354, 2023 § IN RE COVID-RELATED § Courts Below: Court of RESTRICTIONS ON RELIGIOUS § Chancery of the State of Delaware SERVICES § C.A. No. 2021-1036 § § Superior Court § of the State of Delaware § C.A. No. N23C-01-123

Submitted: May 22, 2024 Decided: August 1, 2024

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and GRIFFITHS, Justices, constituting the Court en Banc.

Upon appeal from the Court of Chancery and the Superior Court of the State of Delaware. AFFIRMED.

Stephen J. Neuberger, Esquire (argued), Thomas S. Neuberger, Esquire, THE NEUBERGER FIRM, P.A., Wilmington, Delaware, Thomas C. Crumplar, Esquire, JACOBS & CRUMPLAR, P.A., Wilmington, Delaware, for Appellants Pastor Alan Hines and Reverend David W. Landow.

Zi-Xiang Shen, Esquire, Esquire, Zachary S. Stirparo, Esquire (argued), STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee, Governor John Carney.

LEGROW, Justice: In the early days of a global pandemic, the Governor of Delaware utilized his

powers under the State’s emergency management act to impose restrictions on

individuals and businesses with the intent of protecting public health and slowing

the spread of the virus. Some of those restrictions, although neutrally focused, had

the effect of limiting how people observed and practiced their religions, while other

restrictions were specifically focused on the activities of “houses of worship.” The

restrictions on religious worship became the subject of litigation and are the focus

of this appeal.

All the challenged restrictions were lifted by June 2020. More than 18 months

later, the appellants filed suit in the Court of Chancery, seeking injunctive relief

against restrictions that no longer were in effect. The Court of Chancery dismissed

that action because it concluded that it lacked subject matter jurisdiction over the

dispute. The appellants then transferred their action to the Superior Court, seeking

declaratory judgment and damages regarding the past restrictions on their

constitutional religious rights. The Superior Court also dismissed that action,

concluding that the appellants’ claims for declaratory relief were not justiciable and

that the Governor was immune from suit for the damages claims.

The appellants have challenged the dismissal of their claims by both courts.

The appellants—two religious leaders—advance passionate arguments regarding the

essential nature of religious freedom in this State and this country. We agree that freedom of religion is an essential tenet of our democracy and that restrictions on

religious worship must be viewed with a great deal of skepticism. On the other hand,

the judiciary is not the forum to debate and resolve hypothetical questions regarding

the constitutionality of restrictions that were lifted long before any legal action was

filed. Moreover, public officials who act under emergent conditions and make

careful, discretionary decisions based on the best information available are immune

from personal liability if those actions are later determined to be contrary to the law.

For those reasons, we agree with our trial courts that the appellants’ claims could not

proceed. We therefore affirm the decisions challenged on appeal.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND1

A. COVID-19 Pandemic

In January 2020, public health officials in China identified a novel

coronavirus that later came to be known as the SARS CoV-2 virus (“COVID-19”).2

On March 11, 2020, the World Health Organization declared the spread of COVID-

19 a global pandemic.3 In the days and weeks that followed, the COVID-19 virus

1 Unless otherwise noted, the recited facts are taken from the Superior Court’s August 28, 2023, Opinion and the Court of Chancery’s November 21, 2022, Opinion. See In re COVID-Related Restrictions on Religious Services, 302 A.3d 464 (Del. Super. 2023) (hereinafter “Superior Court Opinion at __.”); In re COVID-Related Restrictions on Religious Services, 285 A.3d 1205 (Del. Ch. 2022) (hereinafter “Chancery Opinion at __.”). 2 Superior Court Opinion at 472. 3 Chancery Opinion at 1211; Superior Court Opinion at 472–73.

2 began spreading rapidly across the United States.4 Federal, state, and local

authorities enacted various mandates and guidelines in an attempt to address the

ensuing public health crisis.

1. The State of Emergency

On March 13, 2020, Governor John C. Carney Jr. (the “Governor”) issued a

“Declaration of a State of Emergency for the State of Delaware Due to a Public

Health Threat” (the “Emergency Declaration”).5 The Emergency Declaration stated

that it would remain in effect “until terminated as provided under state law.” 6 The

Emergency Declaration recommended social distancing and the cancellation of

“non-essential mass gatherings” of one hundred people or more, and addressed the

operation of schools and senior care facilities, but did not otherwise prescribe

specific rules for businesses or gatherings of fewer than one hundred people.7 The

Governor issued the Emergency Declaration in accordance with powers granted to

him under Title 20, Chapter 31 of the Delaware Code (the “Emergency Management

Act”).8

4 Superior Court Opinion at 472. 5 App. to Appellee’s Answering Br. at B1–4. 6 Id. at B1. 7 Id. at B1–4. 8 Id. at B1.

3 2. The Governor’s Authority Under the Emergency Management Act

The Emergency Management Act provides that the Governor is “responsible

for addressing the dangers to life, health, environment, property or public peace

within the State presented by emergencies or disasters . . . .” 9 The Emergency

Management Act further provides that “the Governor may issue, amend and rescind

all necessary executive orders, emergency orders, proclamations and regulations,

which shall have the force and effect of law.”10 Section 3115(c) of the Emergency

Management Act grants the Governor the power to proclaim a state of emergency.

It provides:

In addition to the powers conferred upon the Governor by this chapter, a state of emergency may be proclaimed by emergency order of the Governor upon a finding that an emergency or disaster has occurred or that such occurrence or threat of that occurrence is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with to the extent that conditions necessitating a state of emergency no longer exist and terminates the state of emergency by subsequent order. No state of emergency can continue for more than 30 days without being renewed by the Governor.11

9 20 Del. C. § 3115(a). 10 20 Del. C. § 3115(b). 11 20 Del. C. § 3115(c).

4 Additionally, the Emergency Management Act permits the Governor to “[t]ake such

other actions as the Governor reasonably believes necessary to help maintain life,

health, property, or public peace.”12

B. The Pre-May 15th Orders and Actions

As the COVID-19 pandemic worsened, and in conjunction with updates to

guidance from public health authorities, the Governor issued a series of

modifications to the Emergency Declaration.13

1. The Fourth Modification

On March 22, 2020, the Governor issued the “Fourth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Fourth Modification”).14 The Fourth Modification categorized certain

“businesses, establishments, and enterprises . . . as ‘Essential Businesses’ and ‘Non-

Essential Businesses.’”15 Essential Businesses could remain open; Non-Essential

Businesses had to close their physical locations.16

Under the Fourth Modification, “[h]ouses of worship and other place[s] of

religious expression or fellowship” (collectively, “Houses of Workship”) were

12 20 Del. C. § 3116(b)(13). 13 This Opinion does not include every modification to the Emergency Declaration but only those pertinent to this appeal. 14 App. to Appellee’s Opening Br. at A210–27. 15 Id. 16 Id. at A226–27.

5 deemed Essential Businesses and could remain open.17 The Fourth Modification

went on to state that Houses of Worship were “subject to the requirements of existing

emergency orders, which requirements are not affected by this Order.”18 Included

in “existing emergency orders” was the “Second Modification of the Declaration of

a State of Emergency for the State of Delaware Due to a Public Health Threat” (the

“Second Modification”).19 The Second Modification mandated that “organizers and

sponsors of public gatherings of 50 or more people shall cancel the gatherings

immediately and not reschedule them until after May 15, 2020, or the public health

threat of COVID-19 has been eliminated.”20

The Fourth Modification included a list of mandates and restrictions, titled

“Responsibilities of Essential Businesses,” which included adherence to the

guidance set forth on flexible sick-leave policies, social distancing, cleaning, and

sanitizing.21 The Fourth Modification stated that it had “the force and effect of law,”

and that “[a]ny failure to comply with [its] provisions . . . constitutes a criminal

offense.”22

17 Id. at A225. 18 Id. at A225. 19 App. to Appellee’s Answering Br. at B5–9. 20 Id. at B6. 21 App. to Appellee’s Opening Br. at A213. 22 Id. at A227.

6 2. The Ninth Modification

On April 1, 2020, the Governor issued the “Ninth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Ninth Modification”).23 The Ninth Modification reduced the number

of people permitted to gather from fifty to ten “until after May 15, 2020 or the public

health threat of COVID-19 has been eliminated.”24 The Ninth Modification

contained an exception for “gatherings of employees engaged in work at [E]ssential

[B]usinesses,” which were “not prohibited by th[e] Ninth Modification . . . but

remain subject to requirements for hand hygiene and social distancing.”25

The Ninth Modification expanded the Responsibilities of Essential

Businesses.26 The additional mandates included: allowing no more than 20% of

stated fire occupancy requirements in the building at one time and no more than 10%

during exclusive hours for high-risk populations; clearly marking six-foot spacing

in checkout lines and in high-traffic areas of stores; discontinuing self-serve foods

and product sampling; and designating staff to count the number of customers in the

store and enforce social distancing and guidelines set by the CDC.27

23 Id. at A234–40. 24 Id. at A237. 25 Id. 26 Id. at A238. 27 Id.

7 3. The Tenth Modification

On April 6, 2020, the Governor issued the “Tenth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Tenth Modification”).28 The Tenth Modification modified language

in the Fourth Modification regarding Houses of Worship.29 Houses of Worship were

now ordered to “comply with all social distancing requirements set forth in the

COVID-19 State of Emergency declaration and all modifications, including

attendance of no more than 10 people for in-person services under any

circumstances” (the “Ten-Person Restriction”).30 The Tenth Modification “strongly

encouraged [Houses of Worship] to transition any in-person services to remote

services broadcast by telephone or video.”31

Of the 237 categories of Essential Businesses identified by the State of

Delaware, only Houses of Worship were subject to the Ten-Person Restriction.32

The categories of “Social Advocacy Organizations” and “Business, Professional,

Labor, Political, and Similar Organizations” were designated as Essential Businesses

in the same industry subsector as religious groups, but were not required to comply

28 Id. at A242–54. 29 Id. at A247. 30 Id. 31 Id. 32 Id. at A242–54.

8 with the Ten-Person Restriction.33 Other organizations deemed Essential Businesses

were only subject to the 20% restriction34 within the same industry subsector.35

The only other category of Essential Businesses that faced a special limitation

comparable to Houses of Worship were “Restaurants and Other Eating Places.”36

These businesses were only permitted to provide takeout and delivery.37

4. Guidance on Worship Services

On April 7, 2020, a day after the Governor issued the Tenth Modification, the

Delaware Division of Public Health issued “Guidance on Worship Services” (the

“April Worship Guidance”).38 The April Worship Guidance imposed additional

mandates and restrictions on Houses of Worship. Some of these additional

restrictions included: whenever possible, conducting activities from home through

remote audio or video services; limited in-person services with no physical

interaction with “clergy, staff, or other participants” including, but not limited to,

“collecting donations by basket or plate”; adherence to social distancing; four-hour

33 Id. at A232. 34 Under the 20% restriction, Essential Businesses could allow no more than 20% of the permitted fire occupancy of their premises at any one time, and during exclusive hours for high-risk populations (including seniors) could allow no more than 10% of the permitted fire occupancy of their premises at any one time. 35 Chancery Opinion at 1214–15. 36 App. to Appellee’s Opening Br. at A231. 37 Id. 38 Id. at A206–08.

9 gaps between in-person services; additional cleaning and disinfection guidance; and

a series of rules relating to drive-in services.39

C. May 15 Press Conference

“On May 15, 2020, the Governor held a press conference during which he

addressed concerns about the ‘need for churches to be reopened.’”40 The Governor’s

full remarks were as follows:

One of the things we need to make clear is that we never as an essential function, as a constitutional right, we never did close churches and places of worship in the first place, we just limited public gatherings to ten or fewer, which effectively for many of those places of worship meant that there wasn’t a way for them [to] stay open.41

With respect to the Governor’s remarks at the May 15 press conference, the

Court of Chancery stated that:

The Governor did not close Houses of Worship, as he closed Non- Essential Businesses. Nevertheless, because the Governor made Houses of Worship subject to the Ten-Person Requirement, many of them as a practical matter could not open. For those Houses of Worship, the Ten-Person Requirement operated as a de facto prohibition on opening.42

39 Id. 40 Chancery Opinion at 1215–16. 41 Id. at 1216. 42 Id.

10 D. The Eighteenth Modification and Revised Guidance on Worship Services

On May 18, 2020, the Governor issued the “Eighteenth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Eighteenth Modification”).43 The Eighteenth Modification stated that

“in-person worship can be safely resumed with appropriate precautions to protect

health of worshipers and the public.”44 Although the Eighteenth Modification

permitted in-person worship to resume, it provided that Houses of Worship could

either hold: (1) “in-person services and gatherings of 10 or fewer people”; or (2) “in-

person services and gatherings” of up to 30% capacity only if all attendees observed

CDC social-distancing guidelines.45

On the same day, the Division of Public Health issued revised guidance for

communities of worship (the “May Worship Guidance”).46 The May Worship

Guidance included four pages of restrictions and requirements on Houses of

Worship. These restrictions included the prohibition of: communion, baptism,

worship over 60 minutes, preachers without masks, and services on six out of seven

days each week.47 These requirements included: the posting of signage regarding

43 App. to Appellee’s Opening Br. at A309–14. 44 Id. at A313. 45 Id. at A314. 46 Id. at A316–19. 47 Id.

11 who may enter, masking requirements, and social distancing requirements;

requirements on cleaning and sanitization; and recommendations regarding the

preparation and distribution of materials.48 Although the Governor banned touching

for baptisms, he issued no such restrictions on Jewish circumcisions.49

E. The Bullock Action, Nineteenth Modification, Phase 1 Reopening Plan, and Additional Guidance on Worship Services

On May 19, 2020, Reverend Dr. Christopher Bullock filed a lawsuit against

the Governor in the United States District Court for the District of Delaware

(respectively, the “Bullock Action” and the “District Court”).50 Bullock asserted

that the Emergency Declaration, April Worship Guidance, and May Worship

Guidance violated his rights under the Free Exercise, Establishment, and Equal

Protection Clauses of the United States Constitution.51 Bullock sought injunctive

relief, including a temporary restraining order (“TRO”).52

On May 22, 2020, the Governor issued the “Nineteenth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Nineteenth Modification”).53 Effective June 1, 2020, the Nineteenth

48 Id. 49 See id. 50 App. to Appellee’s Answering Br. at B10–40. 51 Id. 52 Id. at B37. 53 App. to Appellee’s Opening Br. at A325–40.

12 Modification eliminated the “Essential” versus “Non-Essential” categorization of

businesses and replaced it with industry-specific guidance set forth by the Governor

in the Delaware Phase 1 Reopening Plan.54 Under the Phase 1 Reopening Plan,

Houses of Worship could operate at 30% of their permitted fire occupancy.55 On the

same day, the Division of Public Health issued updated Worship Guidance (the

“Reopening Worship Guidance”).56 Under the Reopening Worship Guidance, in-

person youth events, education, and support groups were permitted but limited to ten

persons per group.57 The Reopening Worship Guidance eliminated the rule

restricting religious services to less than one hour, expanded the circumstances in

which an individual did not need to wear a face covering, modified the signage

requirements, and continued to regulate the methods for preparing and distributing

consecrated or blessed food or drink.58 Under the Reopening Worship Guidance it

remained true that an officiant could not physically hold a candidate for baptism.”59

54 Id.; App. to Appellee’s Answering Br. at B60–87. 55 App. to Appellee’s Answering Br. at B82. 56 App. to Appellee’s Opening Br. at A342–46. 57 Id. 58 Id. 59 Id.

13 On May 28, 2020, the District Court heard oral argument and denied Bullock’s

motion for a TRO.60 The District Court held that the relief Bullock requested was

more restrictive to Houses of Worship than the current guidance under the

Reopening Worship Guidance and concluded that Bullock had not established a

threat of “irreparable harm” required to grant a TRO.61 The United States Court of

Appeals for the Third Circuit affirmed the denial of the TRO.62

F. The Twentieth and Twenty-First Modifications

On May 31, 2020, the Governor issued the “Twentieth Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

Threat” (the “Twentieth Modification”).63 The Twentieth Modification eliminated

the restrictions applicable to Houses of Worship set forth in the Eighteenth

Modification and provided that the 30% capacity limit remained in effect for Houses

of Worship and other Essential Businesses.64

On June 14, 2020, the Governor issued the “Twenty-First Modification of the

Declaration of a State of Emergency for the State of Delaware Due to a Public Health

60 Id. at A37–143; Bullock v. Carney, 463 F. Supp. 3d 519, 525 (D. Del. 2020), aff’d, 806 F. App’x 157 (3d Cir. 2020), and aff’d, 2020 WL 7038527 (3d Cir. June 4, 2020). 61 App. to Appellee’s Opening Br. at A342–346; Bullock, 463 F. Supp. 3d at 525. 62 Bullock v. Carney, 806 Fed. App’x 157 (3d Cir. 2020), amended and superseded by Bullock v. Carney, 2020 WL 7038527 (3d Cir. June 4, 2020). 63 App. to Appellee’s Answering Br. at B41–56. 64 Id.

14 Threat” (the “Twenty-First Modification”).65 The Twenty-First Modification

increased the capacity limit for Essential Businesses, including Houses of Worship,

to 60%.66

G. The Bullock Settlement

On November 10, 2020, the parties to the Bullock Action—Bullock and the

State—reached a settlement after court-ordered mediation (the “Settlement

Agreement”).67 Under the terms of the Settlement Agreement, the Governor agreed

“not to impose restrictions that specifically target [H]ouses of [W]orship,”68

including but not limited to restricting gatherings in Houses of Worship to ten

persons.69 The Governor “reserve[d] the right to impose or maintain neutral rules of

general applicability” and agreed to pay $157,200 “for the benefit of” Reverend

Bullock and his counsel.70 The parties stipulated that the Settlement Agreement did

not constitute “an admission or acknowledgement of guilt, wrongdoing, liability, or

financial responsibility whatsoever on the part of the Governor, including any former

or present employees or agents of the Governor.”71

65 Id. at B88–106. 66 Id. 67 Chancery Opinion at 1221; Superior Court Opinion at 476–77. 68 App. to Appellee’s Opening Br. at A562. 69 Superior Court Opinion at 476–77. 70 Chancery Opinion at 1221–22; App. to Appellee’s Opening Br. at A483. 71 Chancery Opinion at 1222.

15 H. State of Emergency Lifted

On July 13, 2021, the Governor ended the State of Emergency and terminated

all restrictions imposed by the Emergency Declaration, including all its

modifications.72

I. The Court of Chancery Action

On December 1, 2021, Pastor Alan Hines of the Townsend Free Will Baptist

Church and Reverend David W. Landow of Emmanuel Orthodox Presbyterian

Church filed separate complaints in the Court of Chancery.73 The Court of Chancery

consolidated the actions, and Hines and Landow (collectively, “Plaintiffs” or

“Appellants”) filed a consolidated amended complaint challenging restrictions that

the Governor imposed on Houses of Worship during the early days of the COVID-

19 pandemic (the “Challenged Restrictions”).74

As the Court of Chancery accurately recounted, “[t]he Challenged

Restrictions evolved over time. Initially, they were quite strict, reflecting the

profound threat that COVID-19 posed in early 2020. As the state of scientific

knowledge progressed, and particularly after the arrival of vaccines, the Governor

72 Id.; Superior Court Opinion at 477. Chancery Opinion at 1222; Superior Court Opinion at 477; App. to Appellee’s Opening Br. at 73

A1–4. 74 Chancery Opinion at 1222; App. to Appellee’s Opening Br. at A1–4; App. to Appellee’s Answering Br. at B167–282.

16 relaxed the Challenged Restrictions.” 75 Although all the Challenged Restrictions

had been lifted entirely by the time Plaintiffs filed their initial complaint, Plaintiffs

sought broad equitable relief and declaratory judgments regarding the Challenged

Restrictions. Specifically, in the consolidated amended complaint Plaintiffs sought

the following remedies: (1) a declaratory judgment regarding the constitutionality of

the Challenged Restrictions, (2) a permanent injunction against the Governor and

his successors to prevent them from enacting similar restrictions in the future, and

(3) nominal and compensatory damages.76

On November 21, 2022, the Court of Chancery dismissed Plaintiffs’

consolidated complaint for lack of subject matter jurisdiction.77 Significant to the

court’s analysis was the fact that all the Challenged Restrictions had been lifted by

June 2, 2020, more than a year before Plaintiffs initiated the Chancery actions.78 The

Court of Chancery found that “the plaintiffs cannot meet the operative standard” of

demonstrating “a reasonable apprehension that the Governor would engage in

conduct that would warrant a permanent injunction.”79

75 Chancery Opinion at 1209. 76 App. to Appellee’s Answering Br. at B167–282. 77 Chancery Opinion at 1235. 78 App. to Appellee’s Answering Br. at B167–282. 79 Chancery Opinion at 1233, 1235.

17 J. Superior Court Action

On January 24, 2023, Plaintiffs transferred their action to the Superior Court

pursuant to 10 Del. C. § 1902 and filed the operative complaint.80 Plaintiffs alleged

violations of their constitutional rights under: Article I, Section 1 of the Delaware

Constitution; the Free Exercise Clause of the First Amendment of the United States

Constitution; the Free Speech, Free Exercise, Free Assembly, and Free Association

Clauses of the First Amendment of the United States Constitution; the Establishment

Clause of the First Amendment of the United States Constitution; and the Equal

Protection Clause of the Fourteenth Amendment of the United States Constitution.81

Plaintiffs requested nominal and compensatory damages and a declaratory

judgment.82

On April 14, 2023, Defendant moved to dismiss Plaintiffs’ claims in their

entirety.83 The Superior Court granted those motions.84 The court dismissed the

claims for nominal and compensatory damages under the U.S. and Delaware

Constitutions on the basis of the qualified immunity doctrine and the State Tort

Claims Act, respectively.85 The Superior Court dismissed the declaratory judgment

80 Superior Court Opinion at 477; App. to Appellee’s Opening Br. at A20–29. 81 Superior Court Opinion at 477. 82 Id. at 478. 83 Id. 84 Id. at 498. 85 Id.

18 claims on the basis that they were not justiciable because Plaintiffs failed to establish

(i) the existence of a current case or controversy; and (ii) that declaratory relief could

redress the harm they allegedly suffered.86

On appeal, Appellants challenge the holdings of the Court of Chancery and

the Superior Court. Appellants argue that: (i) there is no adequate remedy at law for

their irreparable injuries and the Court of Chancery therefore erred in concluding

that it lacked subject matter jurisdiction; (ii) the Governor does not have discretion

to exercise a power expressly forbidden to him by the Delaware Constitution and the

Superior Court’s holdings with respect to justiciability accordingly should be

reversed; and (ii) the Governor does not have qualified immunity and therefore the

Superior Court’s holdings on the State Tort Claims Act and qualified immunity

constituted reversible error.

86 Id.

19 II. STANDARD OF REVIEW

We review questions of law de novo, including issues relating to subject

matter jurisdiction,87 justiciability,88 standing,89 and constitutional questions.90

III. ANALYSIS

A. The Court of Chancery correctly dismissed Appellants’ claim for lack of subject matter jurisdiction.

On November 21, 2022, the Court of Chancery dismissed Appellants’

consolidated complaint for lack of subject matter jurisdiction.91 In the Chancery

proceedings, Appellants argued that:

they have a reasonable apprehension that the Governor will re-impose restrictions on worship comparable to the Challenged Restrictions because (1) the COVID-19 pandemic is not over, (2) the Governor continues to maintain that he never violated the plaintiffs’ constitutional rights by imposing the Challenged Restrictions, (3) the Governor has not issued a sworn statement averring that he will not impose similar policies affecting religious worship in the future, and (4) there is no mechanism to prevent the Governor from re- implementing similar restrictions.92

87 Imbragulio v. Unemployment Ins. Appeals Bd., 223 A.3d 875, 878 (Del. 2019) (citing Linn v. Delaware Child Support Enf't, 736 A.2d 954, 959 (Del. 1999)). 88 Crescent/Mach I Partners, L.P. v. Dr Pepper Bottling Co. of Texas, 962 A.2d 205, 208 (Del. 2008); see Candlewood Timber Group, LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004) (subject matter jurisdiction reviewed de novo); see also Roark & Hardee LP v. City of Austin, 522 F.3d 533, 542 (5th Cir. 2008) (all justiciability issues are reviewed de novo). 89 Albence v. Higgin, 295 A.3d 1065, 1085 (Del. 2022); Rosenbloom v. Esso Virgin Islands, Inc., 776 A.2d 451, 458 (Del. 2000). 90 City of Wilm. v. Nationwide Ins. Co., 154 A.3d 1124, 1127 (Del. 2017); Clark v. Clark, 47 A.3d 513, 517 (Del. 2012). 91 Chancery Opinion at 1235. 92 Id. at 1233–34.

20 The Court of Chancery held that “[v]iewed individually or collectively, these

concerns are not sufficient to support equitable jurisdiction.”93 The court went on to

reason that “[a]lthough it is true that the virus continues to circulate and mutate, the

possibility of a future surge, much less one that will necessitate emergency measures

on par with what the world experienced in the first half of 2020, is speculative at

best.”94 The Court of Chancery found that “the plaintiffs cannot meet the operative

standard” of demonstrating “a reasonable apprehension that the Governor would

engage in conduct that would warrant a permanent injunction.”95

Appellants raise a wide-ranging series of alleged errors on appeal. They

contend that the Court of Chancery erred in finding that there is an adequate remedy

at law for the irreparable injuries they suffered.96 They argue that the threat of

“future irreparable injury [] exists because of the amount of time it will take to seek

emergency injunctive relief the next time the Governor and his successors shut down

and otherwise interfere with religious worship in violation of Article I, § 1.”97

Appellants argue that “the more time it takes, the greater the irreparable injury to the

93 Id. at 1234. 94 Id. 95 Id. at 1233, 1235. 96 Appellants’ Opening Br. at 55. 97 Id. at 56.

21 pastor’s religious worship and other religious constitutional rights.”98 Further,

Appellants contend that the Court of Chancery’s ruling that there was no reasonable

apprehension of the Governor reimposing his policies in the future sufficient to

establish equity jurisdiction, “was the functional equivalent of a merits ruling on the

disputed defense motion that the case was moot, but without any consideration of

the fully briefed legal questions of whether this Court’s exceptions to the mootness

doctrine were met, and the merits test also.”99 Finally, Appellants argue that the

Bullock settlement agreement did not address the protection of Article I, § 1 or the

Establishment Clause but only the protections of the Free Exercise Clause.100

The Governor (“Appellee”) responds that the Court of Chancery correctly

held that Appellants had an adequate remedy at law.101 Appellee argues that

Appellants “ignore the Court of Chancery’s conclusion that their failure to seek a

preliminary injunction to prevent the Governor from acting in 2022 evidences that

they could wait until a final adjudication by a court of law in the form of declaratory

98 Id. at 58. 99 Id. at 59. 100 Id. at 60. Appellants contend that they are not adequately protected by the Bullock Settlement because “we have no consent decree, no binding judicial ruling on the merits, no action by the legislature cancelling his authority, no sworn statement denying in a future emergency the right to affect Sunday worship, and no settlement agreement granting third party rights to enforcement.” Id. 101 Appellee’s Answering Br. at 43–49.

22 judgment.”102 Further, Appellee points out that the Bullock action directly belies the

notion that it will take a church pastor a lengthy amount of time to file an action.

Appellee also disputes Appellants’ contention that the Governor treated the Court of

Chancery’s ruling as resolving the question of mootness. Instead, Appellee asserts

that “[t]he Governor argued—and the Superior Court agreed—that the mootness

doctrine is inapplicable because the controversy was never ripe to begin with.”103

The first issue that this Court must address on appeal is whether the Court of

Chancery erred in dismissing the complaint for lack of subject matter jurisdiction.

The Court of Chancery is a court of limited jurisdiction and

[a]s Delaware’s Constitutional court of equity, the Court of Chancery can acquire subject matter jurisdiction over a cause in only three ways, namely, if: (1) one or more of the plaintiff’s claims for relief is equitable in character, (2) the plaintiff requests relief that is equitable in nature, or (3) subject matter jurisdiction is conferred by statute.104

In the present case, Appellants “ground the existence of equitable jurisdiction on

their request for a permanent injunction.”105

As this Court stated in North River Insurance Company v. Mine Safety

Appliances Company, “[t]o succeed in a request for a permanent injunction, a party

must show (i) actual success on the merits; (ii) that it would suffer irreparable harm

102 Id. at 45. 103 Id. at 47. 104 Candlewood Timber, 859 A.2d at 997 (internal citations omitted). 105 Chancery Opinion at 1224.

23 if the injunction is not granted; and (iii) that the balance of the equities favors it.”106

Subsumed within the second element is the statutory command that the Court of

Chancery lacks jurisdiction to hear a matter where there is a sufficient remedy at law

for the alleged harm.107

On July 13, 2021, the Governor ended the State of Emergency and terminated

all restrictions imposed by the Emergency Declaration, including all its

modifications.108 Appellants filed their Court of Chancery complaints on December

1, 2021.109 By the time the complaints were filed, the challenged conduct had

ceased. Because the Governor had already rescinded the Challenged Restrictions at

the time the Court of Chancery issued its decision, the permanent injunctive relief

sought was forward looking. “A permanent injunction against future conduct is not

warranted simply because a court has found past conduct illegal.”110

106 105 A.3d 369, 379 n.47 (Del. 2014) (citing Christiana Town Ctr., LLC v. New Castle County, 2003 WL 21314499, at *2 (Del. Ch. June 6, 2003), aff’d, 841 A.2d 307 (Del. 2004) (TABLE)). 107 10 Del. C. § 342 (“The Court of Chancery shall not have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other court or jurisdiction of this State.”). 108 Chancery Opinion at 1222; Superior Court Opinion at 477. Chancery Opinion at 1222; Superior Court Opinion at 477; App. to Appellee’s Opening Br. at 109

A1–4. 110 Young v. Red Clay Consol. Sch. Dist., 2017 WL 2271390, at *53 (Del. Ch. May 24, 2017); see Organovo Hldgs., Inc. v. Dimitrov, 162 A.3d 102, 114–15 (Del. Ch. 2017) (“An injunction against future wrongdoing is not generally available.” (citations omitted)).

24 “For forward-looking relief to be warranted the plaintiff must establish a

reasonable apprehension of a future wrong.”111 That does not mean that a litigant

may not seek any legal redress for a past wrong. But the standard to obtain injunctive

relief is higher; to prohibit future action through an injunction, a litigant must show

a reasonable apprehension of future wrong in order to establish irreparable harm,

which is a threshold for injunctive relief, and thus for subject matter jurisdiction in

the Court of Chancery.

Plaintiffs could not demonstrate reasonable apprehension of future conduct.

As the Court of Chancery noted below, “[a]lthough it is true that the virus continues

to circulate and mutate, the possibility of a future surge, much less one that will

necessitate emergency measures on par with what the world experienced in the first

half of 2020, is speculative at best.”112 Appellants do not confront the speculative

nature of the future threat they allege, and instead invoke a generalized refrain that

any restriction on their religious freedom causes irreparable harm. This argument,

such that it is, does not address the Court of Chancery’s analysis or carry Appellants’

burden to establish subject matter jurisdiction. The importance of Appellants’

constitutional rights is not disputed, but it also is not dispositive. The fact remains

that, by the time Appellants filed suit, the Challenged Restrictions had been lifted,

111 Organovo Hldgs., 162 A.3d at 114–15 (citations omitted). 112 Chancery Opinion at 1234.

25 the Governor had entered into a binding agreement not to impose future restrictions

targeting Houses of Worship, and the apprehension of a future pandemic and

conditions like those of the early days of the emergency was hypothetical and

speculative. This Court “decline[s] to render an advisory opinion on a hypothetical

scenario.”113

Our ruling does not mean that the Governor is free to impose similar

restrictions in the future. Rather, we conclude that the Court of Chancery did not err

in concluding that Appellants failed to show a reasonable apprehension of future

conduct from the Governor that would warrant invoking the jurisdiction of our court

of equity.114

B. The Superior Court correctly held that Appellants’ declaratory judgment claim was not justiciable.

Appellants next challenge the Superior Court’s conclusion that the declaratory

judgment claims were not justiciable. “In order to adjudicate a matter, a court must

have a justiciable controversy before it.”115 Justiciability describes “whether a case

113 Facer v. Carney, 277 A.3d 937, 2022 WL 1561444 (Del. 2022) (TABLE), reargument denied (June 1, 2022). 114 The Court of Chancery dismissed the action with leave to transfer under 10 Del. C. § 1902. The Governor’s conduct did not moot the action, rather it eliminated the equitable hook needed to sustain the jurisdiction of the Court of Chancery. 115 Emps. Ins. Co. of Wausau v. First State Orthopaedics, P.A., 312 A.3d 597, 606–07 (Del. 2024) (citing Crescent/Mach 1 Partners, L.P. v. Dr. Pepper Bottling Co. of Texas, 962 A.2d 205, 208 (Del. 2008) (quoting Warren v. Moore, 1994 WL 374333, at *2 (Del. Ch. July 6, 1994))).

26 is properly suited for resolution by” a court.116 The four aspects of justiciability are

standing, mootness, ripeness, and political question.117 “Although we refer to the

federal courts’ interpretation of Article III standing, Delaware courts are not bound

by the federal rules of justiciability.”118

The Superior Court held that Appellants’ request for a declaratory judgment

was not justiciable for two independent reasons: the complaint failed to establish the

existence of a case or controversy, and the plaintiffs failed to establish standing.119

Appellants waived any claim of error as to the Superior Court’s case-or-controversy

analysis by failing to meaningfully challenge it on appeal. As to standing, we

116 Rucho v. Common Cause, 588 U.S. 684, 691 (2019). 117 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“The doctrines of mootness, ripeness, and political question all originate in Article III's ‘case’ or ‘controversy’ language, no less than standing does.”). See Bankruptcy Litigation § 1:2 (“Issues of justiciability can arise, for example, in instances where a matter is not ripe, where an advisory opinion is sought, where a matter is moot, where a party lacks standing, and where the parties in the dispute do not hold adverse interests.”); 13B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.12 (3d ed.) (“Although discrete names have been given to the several nominate categories of justiciability, they are tied closely together. Standing generates the most excitement, because it focuses directly on the question whether a particular interest or injury is adequate to invoke the protection of judicial decision. Ripeness and mootness easily could be seen as the time dimensions of standing. Each assumes that an asserted injury would be adequate; ripeness then asks whether an injury that has not yet happened is sufficiently likely to happen, and mootness asks whether an injury that has happened is too far beyond a useful remedy. Political-question analysis also is affected by the extent of individual injury.”). 118 Albence v. Higgin, 295 A.3d 1065, 1086 (Del. 2022) (citing ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (“We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability[.]”)). 119 Superior Court Opinion at 492.

27 conclude that the Superior Court correctly held that the harm alleged in the complaint

was not redressable through entry of a declaratory judgment.

1. Case or Controversy

Before a court may adjudicate a dispute and determine whether relief—

including declaratory relief—is warranted, it must have a justiciable controversy

before it.120 The judiciary’s power to issue a declaratory judgment “is limited by the

well-settled principle that a declaratory judgment must ‘address an actual

controversy between parties with affected rights.’”121 In Rollins Int’l v. Int’l

Hydronics Corp., we adopted a four-part test to determine whether a case or

controversy exists:

(1) It must be a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) the controversy must be between parties whose interests are real and adverse; [and] (4) the issue involved in the controversy must be ripe for judicial determination.122

The Superior Court applied that test and held that “Plaintiffs have failed to establish

an actual case or controversy[.]”123

120 Id. (citing Crescent/Mach I Partners, 962 A.2d at 208) (quoting Warren, 1994 WL 374333, at *2)). 121 Gower v. Trux, Inc., 2022 WL 534204, at *12 (Del. Ch. Feb. 23, 2022) (quoting Lynch v. Gonzalez, 2020 WL 5648567, at *6 (Del. Ch. Sept. 22, 2020)). 122 Rollins Int’l v. Int’l Hydronics Corp., 303 A.2d 660, 662–63 (Del. 1973). 123 Superior Court Opinion at 493–95 (citing and quoting Rollins Int’l, 303 A.2d at 662–63).

28 Appellants do not meaningfully address the Superior Court’s case-or-

controversy analysis, nor do they cite Rollins in any of their submissions on appeal.

The only time Appellants mention the case-or-controversy requirement in their

opening brief is in a single sentence in a section addressing standing. There,

Appellants argue that “[t]he interrelated conclusion that Plaintiffs lack standing and

there is no case or controversy when their rights under the Delaware Constitution

are denied is in error.”124

The rules of this Court specifically require an appellant to raise and argue

claims of error in both the Summary of Argument and the Argument portions of their

Opening Brief in order to assure consideration by this Court.125 Most importantly,

Rule 14(b)(vi)(2) provides that “[t]he merits of any argument that is not raised in the

body of the opening brief [is] deemed waived and will not be considered by the Court

on appeal.”126

Appellants’ passing mention of the case-or-controversy requirement in a

section otherwise addressed to standing is not sufficient to raise the merits of the

argument. Although Appellants conflate the two doctrines, they are independent

124 Appellants’ Opening Br. at 41. 125 Del. Sup. Ct. R. 14(b)(iv), (vi); Roca v. E.I. du Pont de Nemours & Co., 842 A.2d 1238, 1242 (Del. 2004) (internal quotations and citations omitted) (“It is well established that to assure consideration of an issue by the court, the appellant must both raise it in the Summary of the Argument and pursue it in the Argument portion of the brief.”). 126 Del. Sup. Ct. R. 14(b)(vi)(2).

29 requirements of justiciability, and both must be met.127 Nowhere in their opening

brief do Appellants either identify or present an argument on the issue of case or

controversy in the manner that is required by the Rules of this Court. “This Court

has held that the appealing party’s opening brief must fully state the grounds for

appeal, as well as the arguments and supporting authorities on each issue or claim of

reversible error.”128 “[C]asual mention of an issue in a brief is cursory treatment

insufficient to preserve the issue on appeal.”129 Accordingly, we hold that

Appellants abandoned and waived this issue on appeal, and we therefore affirm the

Superior Court’s holding that the complaint failed to raise a case or controversy for

adjudication.

2. Standing

Although Appellants address standing in their briefs on appeal, they do not

directly engage with the Superior Court’s redressability analysis and instead insist

127 First State Orthopaedics, 312 A.3d at 607 (“The four aspects of justiciability include standing, mootness, ripeness, and political question.”); DaimlerChrysler Corp., 547 U.S. at 352 (“The doctrines of mootness, ripeness, and political question all originate in Article III's ‘case’ or ‘controversy’ language, no less than standing does.”). 128 Roca, 842 A.2d at 1242 (citing Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994)). See also Willhauck v. Halpin, 953 F.2d 689, 700 (1st Cir. 1991) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived . . . . It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work . . . . Judges are not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.”). 129 Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).

30 that the alleged violations of their constitutional rights necessarily confer standing

upon them.130 At oral argument, Appellants argued that standing exists “because the

Constitutional protection is there to protect them” and “by having their religious

worship rights stripped away, they suffered injury that gives them standing.”131

This Court has previously held that:

The term “standing” refers to the right of a party to invoke the jurisdiction of a court to enforce a claim or to redress a grievance. Standing is a threshold question that must be answered by a court affirmatively to ensure that the litigation before the tribunal is a ‘case or controversy’ that is appropriate for the exercise of the court's judicial powers.132

Further, “[t]he party invoking the jurisdiction of a court bears the burden of

establishing the elements of standing.”133 Absent a:

specific statutory grant of review, to establish standing in Delaware, . . . a plaintiff must demonstrate that:

(i) the plaintiff has suffered an ‘injury-in-fact,’ i.e., a concrete and actual invasion of a legally protected interest; (ii) there is a causal connection between the injury and the conduct complained of; and (iii) it is likely the injury will be redressed by a favorable court decision.134

130 Appellants’ Opening Br. at 41–42. 131 Oral Argument at 3:50–5:01. 132 Dover Hist. Soc. v. City of Dover Plan. Comm'n, 838 A.2d 1103, 1110 (Del. 2003). 133 Id. at 1109. 134 Albence, 295 A.3d at 1086 (citing Reeder v. Wagner, 974 A.2d 858, 2009 WL 1525945, at *2 (Del. 2009) (TABLE)); O'Neill v. Town of Middletown, 2006 WL 205071, at *28 (Del. Ch. Jan. 18, 2006) (internal quotations omitted)).

31 The Superior Court held that a declaratory judgment would not redress Plaintiffs’

alleged injuries and that therefore standing was lacking.135

Under the standing doctrine’s redressability prong, the relief sought must be

capable of redressing the plaintiff’s injury or grievance.136 When the challenged

conduct has ceased before litigation is filed, redressability can be difficult to

demonstrate. We recently discussed redressability in Emps. Ins. Co. of Wausau v.

First State Orthopaedics, P.A.137 There, we reversed the Superior Court’s holding

that the appellee had standing when it sought declaratory judgment regarding a

billing code that the appellant stopped using six months before the complaint was

filed.138 We ruled that the appellee’s request for declaratory relief did not seek to

redress an actual or imminent injury and was only prospective.139 We explained that

“to determine whether an injury is redressable, a court will consider the relationship

between the judicial relief requested and the injury suffered. Additionally, the

plaintiff must show that it is likely, not just speculative, that the requested relief will

redress the injury.”140 In First State Orthopaedics, we concluded that “a defendant’s

135 Superior Court Opinion at 497. 136 Albence, 295 A.3d at 1085. 137 312 A.3d 597, 613 (Del. 2024). 138 Id. at 600. 139 Id. at 613. 140 Id. (citing California v. Texas, 593 U.S. 659, 671 (2021); Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 904 (Del. 1994)) (internal quotations omitted).

32 voluntary cessation of conduct before litigation begins generally renders a

controversy non-justiciable for lack of standing.”141

Here, the Superior Court correctly held that Appellants’ injury could not be

redressed through a prospective declaratory judgment. In much the same way that

Appellants’ irreparable harm argument crumbled because the Challenged

Restrictions no longer were in effect and any future action imposing similar

restrictions was speculative, the declaratory judgment sought in the Superior Court

would not alter the status quo. Moreover, Appellants’ constitutional rights would

not be restored or further protected by declaratory relief because the complained-of

harm had long since ceased and the threat of future harm was speculative.142

Appellants’ argument on appeal does not address redressability and thus fails

to properly address an element of standing. Had they filed their action while the

challenged conduct was ongoing, Appellants would have had standing to pursue

their claims, subject to mootness considerations if the challenged conduct ceased

during the course of the litigation. But Appellants inexplicably waited to pursue

their claims and in doing so lost standing under established and binding precedent.

Much like in First State Orthopaedics, at the time Appellants filed the complaint,

141 First State Orthopaedics, 312 A.3d at 600. 142 Superior Court Opinion at 497.

33 there was no ongoing harm from which a declaratory judgment would provide

relief.143

C. The Superior Court correctly concluded that Appellee was immune from Appellants’ damages claims for alleged violations of their constitutional rights.

After dismissing Appellants’ declaratory judgment claims as nonjusticiable,

the Superior Court concluded that the Governor was immune from suit for

Appellants’ claims seeking monetary damages. Appellants challenge all of the

Superior Court’s immunity holdings on appeal. As explained below, we affirm those

holdings.

1. Delaware’s State Tort Claims Act.

The Superior Court first held that Plaintiffs’ request for damages for alleged

violations of their rights under Article 1, Section 1 of the Delaware Constitution was

barred by the Delaware State Tort Claims Act (“STCA”).144 Specifically, the

Superior Court found as a matter of law “that the Governor is immune from damages

pursuant to the STCA for actions taken pursuant to the Emergency Management Act

143 312 A.3d 597, 613 (Del. 2024). 144 Superior Court Opinion at 486. On appeal, Appellee argued for the first time that Plaintiffs do not have a private right of action for claims arising under the Delaware Constitution. Appellee’s Answering Br. at 11–12. We reject this argument without reaching its merits because it was not raised below. The argument is precluded by Rule 8 of this Court, which provides that arguments not fairly presented to the trial court will not be considered by this Court. Del. Sup. Ct. R. 4.

34 because those actions were discretionary in nature, and made in good faith without

gross or wanton negligence.”145

The STCA is titled “Limitation on civil liability,” and it exempts State

employees “from civil liability for acts or omissions taken in their capacity as such

. . . .”146 Under the STCA, “no claim or cause of action shall arise, and no judgment,

damages. . . shall be awarded against a public officer or employee. . .” where the

official’s actions were: (1) discretionary; (2) undertaken in “good faith and in the

belief that the public interest would best be served thereby;” and (3) undertaken

without gross or wanton negligence.147 The plaintiff bears the burden of proving the

absence of one or more of the elements of immunity in a suit against a state employee

for damages.148

145 Superior Court Opinion at 489. 146 Jackson v. Minner, 2013 WL 871784, at *5 (Del. Super. Mar. 1, 2013), aff’d, 74 A.3d 654 (Del. 2013). 147 10 Del. C. § 4001. With respect to the first element, the official's actions are discretionary if: The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or member, or anyone over whom the public officer, employee or member shall have supervisory authority. 10 Del. C. § 4001. 148 10 Del. C. § 4001(c).

35 Appellants did not argue in the Superior Court or on appeal that the

Governor’s actions were not taken in good faith or that he acted with gross or wanton

negligence.149 Having failed to contest the second and third elements of the STCA,

Appellants are left to argue that the Governor’s acts were ministerial. But even on

this element, Appellants do not directly contest the point. Instead, Appellants

contend that the Governor did not have the discretion to impose the Challenged

Restrictions because he did not possess the power to do so under the Delaware

Constitution.150 As Appellee points out, this argument is circular and fails to

confront the relevant question under the first prong of the STCA, which addresses

the type of authority being wielded, not whether it was wielded properly.151

Appellee contends that the Superior Court correctly held that the Governor’s

exercise of authority under the Emergency Management Act was discretionary.152

Appellants failed to carry their burden of showing that the Governor’s conduct

was ministerial rather than discretionary.153 “Whether an act is discretionary or

ministerial is a legal determination.”154 “Discretionary acts are those which require

149 Superior Court Opinion at 492. 150 Appellants’ Opening Br. at 38–40. 151 Appellee’s Answering Br. at 16. 152 Id. at 14. 153 Minner, 2013 WL 871784, at *5–6. 154 Wonnum v. Way, 2017 WL 3168968, at *3 (Del. Super. July 25, 2017); Guitierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14, 2015); Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL 2119652, at *4 (Del. Super. May 20, 2014).

36 some determination or implementation which allows a choice of methods, or,

differently stated, those where there is no hard and fast rule as to a course of

conduct.”155 When the law prescribes only a general mandate for officials’ actions,

we have concluded that it provides for discretionary decision making.156 In contrast,

ministerial acts are performed in a prescribed manner without requiring an official

to exercise judgment regarding what should be done.157 Ministerial actions “involve

less in the way of personal decision or judgment.”158

This Court has previously held that “the Governor’s exercise of emergency

powers is a discretionary act.”159 The language of the Emergency Management Act

is broad and provides that the Governor “may issue, amend and rescind all necessary

executive orders, emergency orders, proclamations and regulations, which shall have

the force and effect of law.”160 Additionally, the Emergency Management Act

permits the Governor to “[t]ake such other actions as the Governor reasonably

believes necessary to help maintain life, health, property, or public peace.”161 The

Emergency Management Act does not identify any specific actions that the

155 Simms v. Christina Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Jan. 30, 2004). 156 Superior Court Opinion at 488 (citing Minner, 2013 WL 871784, at *5–6). 157 Simms, 2004 WL 344015, at *8. 158 Sussex County v. Morris, 610 A.2d 1354, 1359 (Del. 1992). 159 Facer, 2022 WL 1561444, at *1. 160 20 Del. C. § 3115(b) (emphasis added). 161 20 Del. C. § 3116(b)(13) (emphasis added).

37 Governor must take or refrain from taking to “maintain life, health, property, or

public peace” in response to the pandemic.162 There are no “hard and fast rules” as

to how the Governor is to respond to an emergency of this sort or any other.163

In enacting the Emergency Management Act, the legislature accorded the

Governor broad authority to make policy decisions and choices that he believed were

reasonable and necessary to address the emergency at hand. As the Superior Court

explained:

The Governor’s authority under the Emergency Management Act is broad so that he may best apply his well-reasoned judgment and tailor the State’s response to a novel crisis without having to be overly concerned that his actions might violate the law. The COVID-19 pandemic is precisely the type of unprecedented, unpredictable emergency the Delaware legislature likely contemplated when enacting this statute.164

Thus, we affirm the Superior Court’s finding that the Governor’s adoption of the

Challenged Restrictions was an exercise of his discretionary authority, and he

therefore is immune under the STCA from Appellants’ damages claims arising under

the Delaware Constitution.

162 20 Del. C. § 3116(b)(13). 163 Simms, 2004 WL 344015, at *8 (finding immediate supervisor’s conduct was discretionary because there were no “hard and fast” rules concerning the manner in which he was to supervise a residential advisor). 164 Superior Court Opinion at 490.

38 2. Section 1983 and Qualified Immunity.

Appellants also contend that the Superior Court erred in holding that their

claims arising under the United State Constitution and 42 U.S.C. § 1983 were barred

by the doctrine of qualified immunity.165 Section 1983 provides that:

Every person who, under color of any statute . . . of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .166

To succeed on a Section 1983 claim, a plaintiff must establish: (1) a

deprivation of a right under the United States Constitution (2) by a person acting

under color of State law.167 In addition, a plaintiff must establish that the official’s

conduct is not protected by qualified immunity.168

“Qualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they perform their

duties reasonably.”169 The purpose of qualified immunity is to protect officials when

165 Superior Court Opinion at 480. 166 42 U.S.C. § 1983. 167 Hunt ex rel. DeSombre v. State, Dep’t of Safety & Homeland Sec., Div. of Del. State Police, 69 A.3d 360, 365 (Del. 2013) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)); West v. Atkins, 487 U.S. 42, 49 (1988)). 168 Hunt ex rel. DeSombre, 69 A.3d at 365 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). 169 Pearson, 555 U.S. at 231.

39 their jobs require them to make difficult on-the-job decisions or when they make

“reasonable mistakes about the legality of their actions . . .”170 Qualified immunity

applies whether the “government official’s error is a mistake of law, a mistake of

fact, or a mistake based on mixed questions of law and fact.”171

Under established precedent, qualified immunity bars a Section 1983 claim so

long as the official’s conduct did not violate a clearly established constitutional or

statutory right.172 “To be clearly established, a right must be sufficiently clear that

every reasonable official would have understood that what he is doing violates that

right.”173 Qualified immunity broadly protects government officials, shielding “all

but the plainly incompetent” and “those who knowingly violate the law.”174

It is important to evaluate whether a right was “clearly established” when it

allegedly was violated, without relying on information not available at that time and

developments in the law that occurred later. Now, the emergency has passed, public

170 Mauro v. Cuomo, 2023 WL 2403482, at *7 (E.D.N.Y. Mar. 8, 2023). See Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir. 2012); Zieper v. Metzinger, 474 F.3d 60, 71 (2d Cir. 2007); Hanson v. Del. State Pub. Integrity Comm'n, 2012 WL 3860732, at *15 (Del. Super. Aug. 30, 2012), aff'd, 69 A.3d 370 (Del. 2013). 171 Pearson, 555 U.S. at 231 (internal quotation marks omitted). 172 White v. Pauly, 580 U.S. 73, 78–79 (2017) (internal quotations omitted) (citing Mullenix v. Luna, 577 U.S. 7, 11 (2015)). The trial court has broad discretion to decide the order in which they analyze the two inquiries of a qualified immunity analysis. See Pearson, 555 U.S. at 236 (holding that the more stringent two step inquiry for deciding government officials’ qualified immunity claims outlined in Saucier v. Katz, 533 U.S. 194 (2001) was no longer mandatory). 173 Reichle v. Howards, 566 U.S. 658, 658 (2012) (internal quotation marks and alteration omitted). 174 Malley v. Briggs, 475 U.S. 335, 335 (1986).

40 opinions vary widely about decisions made in emergent conditions, and many courts

have had the opportunity to consider “on a clear day” the constitutional parameters

of emergency restrictions imposed on religious worship during the pandemic. But

we must eschew the temptation to use the benefit of hindsight to evaluate whether

the Governor’s conduct violated “clearly established” rights.

Equally as important, our analysis cannot rest on generalities regarding the

importance of Appellants’ First Amendment rights. When defining “clearly

established” rights, the United States Supreme Court has instructed courts that “[t]he

dispositive question is ‘whether the violative nature of particular conduct is clearly

established.’”175 The clearly established law must be “particularized to the facts of

the case.”176

The facts of this case arose during a period of uncertainty and at the beginning

of an unprecedented public health crisis in which a previously unknown, deadly

virus with no available treatment was spreading rapidly through the population and

overwhelming health systems.177 The mechanism for spreading the virus was

initially unclear. The Challenged Restrictions were adopted in the first two-and-a-

half months of the pandemic and changed continuously as the Governor and his

175 Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). 176 White, 580 U.S. at 79 (internal quotations omitted) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 177 Chancery Opinion at 1211; Superior Court Opinion at 472–74.

41 administration attempted to respond to developing information and guidance from

public health officials.

Appellants contend that because the Governor’s “misconduct was illegal

under multiple provisions of the Delaware Constitution, [the Governor] had fair

warning of the law and the right was clearly established.”178 Appellants argue that

the Third Circuit and U.S. Supreme Court “have ‘consistently’ and repeatedly held

that when the challenged state actions already are illegal under state law, the state

law violation makes the federal violation ‘obvious’ even in the absence of materially

similar cases.”179 Appellants allege that the Governor’s “de facto exemption of

Jewish religious rites of circumcision and the Minyan from his Orders while

targeting the Protestant religious rites of baptism and communion has long violated

Free Exercise.”180 Further, Appellants argue that the Superior Court erred by

requiring factually “identical cases addressing church closures and establishment

issues occurring during a pandemic.”181 Appellants note that health crises, plagues,

and pandemics are not new in our country’s history and do not give the Governor

the right to violate citizens’ rights to freely exercise their religion.182

178 Appellants’ Opening Br. at 44–45. 179 Id. at 44. 180 Id. at 52. 181 Id. at 48. 182 Id. at 48–54.

42 Despite Appellants’ argument that the Governor’s actions were “obvious”

violations of Appellants’ First Amendment rights even in the absence of materially

similar cases, courts around the country have held that it is “irrational” to claim that

similar actions taken in response to a pandemic clearly violated Supreme Court

precedent.183 During this time “there was no clear consensus among federal or state

courts that the Governor’s actions were unlawful.”184 In its decision, the Superior

Court conducted a thorough analysis of cases around the country and found that “the

law was wholly unsettled as to whether officials could issue certain restrictions for

the purpose of preventing the spread of the coronavirus that may have also curtailed

individuals’ First Amendment or Equal Protection rights.”185 In particular, the

Superior Court pointed to U.S. District Court decisions in Northland Baptist Church

of St. Paul, Minnesota v. Walz,186 Case v. Ivey,187 and Mader v. Union Township,188

183 See Hinkle Fam. Fun Ctr., LLC v. Grisham, 586 F. Supp. 3d 1118, 1129 (“[I]t is simply irrational to assert that a reasonable health official would have known that imposing business closings in response to a pandemic clearly violated Supreme Court precedent.”) (quoting Bojicic v. DeWine, 569 F. Supp. 3d 669, 692 (N.D. Ohio 2021)); Bastian v. Lamont, 2022 WL 2477863, at *7 (D. Conn. 2022) (“[I]t is implausible that ‘every reasonable official’ would have understood issuing or enforcing public health policies violated the plaintiffs’ rights.”). 184 Superior Court Opinion at 482. 185 Id. 186 530 F. Supp. 3d 790, 806–07 (D. Minn. 2021), aff'd sub nom. Glow In One Mini Golf, LLC v. Walz, 37 F.4th 1365 (8th Cir. 2022). 187 542 F. Supp. 3d 1245, 1269–80 (M.D. Ala. 2021), aff'd, 2022 WL 2441578 (11th Cir. July 5, 2022). 188 2021 WL 3852072, at *7 (W.D. Pa. Aug. 27, 2021).

43 all of which found that the defendants were entitled to qualified immunity from

claimed violations of the plaintiffs’ First Amendment rights because the plaintiffs

could not demonstrate that the defendants violated a clearly established right.189

Appellants have not pointed to any binding precedent from the United States

Supreme Court or the Third Circuit, or to a “robust consensus” in other courts

addressing the particularized facts of this case. Instead, Appellants rely on cases

generally addressing the scope of free exercise rights. But identifying generalized

rules regarding the First Amendment and the free exercise of religion does not

overcome qualified immunity because the purpose of the doctrine is to protect

officials who make difficult decisions on the basis of developing facts. A plaintiff’s

burden under qualified immunity does not end when a constitutional violation is

pinpointed; it rests on whether the official should have known that their actions

violated a clearly established constitutional right. In hindsight, we can identify a

possible constitutional violation arising from the Challenged Restrictions’ non-

neutral treatment of Houses of Worship or of particular types of worship, but we

cannot find that it was clearly established at the time the restrictions were in effect

that these temporary, emergency limitations intended to shield human life were

unconstitutional. Consequently, Appellants have not carried their burden to lift the

shield of qualified immunity.

189 Superior Court Opinion at 482.

44 Case law that has developed since the Challenged Restrictions were lifted

supports the view that the restrictions violated Appellants’ rights. Well after the

Challenged Restrictions were lifted, the United States Supreme Court issued its

opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court held

that a church and synagogue established that they would likely prevail in proving

that occupancy limitations at public places of worship violated the Free Exercise

Clause of the First Amendment.190 A future governor confronted with a future

public-health emergency would have the benefit of that precedent, but it was not

available at the time Appellee made the decisions at issue. Although singling out

Houses of Worship for heightened restrictions was a probable constitutional

violation under Cuomo, we affirm the Superior Court’s holding that at the time the

Challenged Restrictions were adopted there was no “clearly established law”

addressing these particularized facts.

IV. CONCLUSION

For the foregoing reasons, we affirm the holdings of the Court of Chancery

and the Superior Court.

190 592 U.S. 14 (2020).