In Re Covid-Related Restrictions On Religious Services

Facts

On January 7, 2020, public health officials in China identified a novel coronavirus that was causing an outbreak of atypical pneumonia in the city of Wuhan. On March 11, 2020, the World Health Organization declared that the spread of COVID-19 was a pandemic. On March 13, 2020, D issued a “Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat.” The Emergency Declaration advised event hosts to “cancel all ‘non-essential mass gatherings’ of 100 people or more” and recommended that “those at highest risk (over age 60 and with chronic health conditions) not attend large gatherings.” The Declaration advised that if any large gathering took place, individuals should take certain precautions to reduce the spread of the virus. The Declaration did not prescribe specific rules for businesses or gatherings of fewer than one hundred people. D’s authority to declare this state of emergency was derived from the Emergency Management Act. Section 3115(c) grants D 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. “[T]he Governor may issue, amend and rescind all necessary executive orders, emergency orders, proclamations and regulations, which shall have the force and effect of law.”The Act further provides that the Governor may “[t]ake such other actions as the Governor reasonably believes necessary to help maintain life, health, property or public peace.” As the rate of infection and death toll caused by the pandemic increased over the next several weeks, D issued a series of modifications to the Emergency Declaration. On March 22, 2020, the Fourth Modification set restrictions specific to “Essential Businesses,” which included Houses of Worship. 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.” On April 1, 2020, the Ninth Modification limited in-person gatherings to ten people “until after May 15, 2020, or the public health threat of COVID-19 has been eliminated.” On April 6, 2020, the Governor issued the Tenth Modification to the Declaration.24 This modification ordered that Houses of Worship “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.” On May 18, 2020, the Eighteenth Modification 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 could observe CDC social distancing guidelines.These modifications included four pages of restrictions on the operation of Houses of Worship. These restrictions included prohibiting: communion, baptism, worship over 60 minutes, preachers without masks, and service on 6 out of 7 days each week. Although D banned the touching requirement for baptisms, he issued no such restrictions on Jewish circumcisions. On May 19, 2020, Reverend Dr. Christopher Alan Bullock (P1) filed a lawsuit against D in the United States District Court. P1 sought injunctive relief, including a temporary restraining order. On May 22, 2020, D issued the Nineteenth Modification. On May 28, 2020, the District Court denied P1’s request for a TRO noting that the relief P1 requested was more restrictive than the current Reopening Worship Guidance and because he had not established a threat of “irreparable harm” required to grant a TRO. The United States Court of Appeals for the Third Circuit affirmed the denial of the TRO. On May 31, 2020, D issued the Twentieth Modification. On November 10, 2020, the parties to P1's Action reached a settlement. By the terms of the Settlement Agreement, Dr agreed “not to impose restrictions that specifically target[ed] [H]ouses of [W]orship,” including but not limited to a restriction limiting gatherings in Houses of Worship to ten persons. On July 13, 2021, D ended the State of Emergency and terminated all of the restrictions in the Emergency Declaration, and their modifications. On December 1, 2021, Pastor Alan Hines of the Townsend Free Will Baptist Church and Reverend David W. Landow of Emmanuel Orthodox Presbyterian Church (Ps) filed separate actions in the Court of Chancery. Ps claimed the Challenged Restrictions violated their rights under both the Delaware and United States Constitutions. Ps sought: (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 future restrictions, and (3) nominal and compensatory damages.The “primary” relief requested in the Court of Chancery action was a permanent injunction. On November 21, 2022, the Court of Chancery dismissed Ps’ consolidated complaint for lack of subject matter jurisdiction. The Court held that the request for injunctive relief was not justiciable because “Ps cannot meet the operative standard” of demonstrating a “reasonable apprehension that the Governor would engage in conduct that would warrant a permanent injunction.” The Court stated that the possibility of future COVID-19-induced harm to Houses of Worship was “speculative at best.” Ps transferred this action to the Superior Court. Ps now request nominal and compensatory damages and a declaratory judgment. D filed a motion to dismiss on April 14, 2023. D claims the action is barred by the doctrine of qualified immunity and the State Tort Claims Act (STCA).

Issues

Rule of Law

Holding and Decision

Legal Analysis

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