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Federal appeals court affirms dismissal of Calvary Chapel suit against Mills

In an unusually pointed opinion Monday, a federal appeals court chastised Liberty Counsel attorneys and offered "tutorials" on the law.

BANGOR, Maine — A federal appeals court issued a caustic opinion agreeing with a Maine district court judge that a lawsuit filed by Calvary Chapel in Orrington against Gov. Janet Mills is moot.

The suit claimed the restrictions she imposed due to COVID-19 were unconstitutional and discriminatory because they prohibited in-person gatherings of 10 or more people.

Writing for the First Circuit Court of Appeals, Circuit Judge O. Rogeriee Thompson affirmed a ruling that the lawsuit is moot because the restrictions the lawsuit objected to have ended and rejected Calvary's argument that the case is still relevant because Mills' "regime" could impose new restrictions at any time. 

"The case is moot ... and no mootness exception can save it," Thompson wrote.

But Liberty Counsel founder and chairman Mat Staver said Calvary Chapel may still petition the U.S. Supreme Court to hear the case, despite that court previously declining to hear the case.

In their decision this week, the appeals court said attorneys for the church -- from the national religious organization Liberty Counsel -- filed a "paper blizzard" of documents with the court, are "still searching for a mic-drop moment," and at one point offered those attorneys "tutorials" on the law.

The decision notes that Calvary's filings demand that Mills "mak[e] the concrete commitment that she will not return to her old ways."

In May 2020, Calvary Chapel filed suit against Mills, unsuccessfully seeking a temporary restraining order barring enforcement of an executive order limiting indoor religious gatherings to 10 people for any "social, personal, [or] discretionary events" including faith-based events, the court record shows. 

In February 2021, after Mills increased the limit to as many as 50 people, the church asked the court to lift the restriction entirely.

"The filings in the district court became a paper blizzard," Thompson  wrote. 

All gathering restrictions ended in May 2021, and Mills' final executive order expired on June 30, 2021. Since then, a federal judge has dismissed the lawsuit as moot, and a federal appeals court upheld the decision. 

Justice Stephen Breyer of the U.S. Supreme Court declined to hear the case without even asking the other justices to respond or asking his colleagues to get involved.

The court said this week it could only rule on "live" disputes, not "moot" disputes, and noted only two rare exceptions. 

"We give a quick tutorial on each," justices wrote in Monday's decision before explaining the legal concepts. 

"Bowing to reality, Calvary conceded at oral argument here that the Governor has ended Maine's gathering restrictions and Maine's state of emergency," the decision said. "But as Calvary sees things, with the Governor's defense of the restrictions, the case is not moot under the two possible exceptions. That, though, is not how we see things."

Repeating Calvary's own language, the court ruled, "So not to put too fine a point on it, but we see no hint that the Governor will 'pick up where [she] left off' if the case is declared moot ... Far from it, for the Governor has shown that she changed course for reasons unrelated to the litigation."

But Staver said Thursday that he still thinks Mills lifted restrictions in May 2021 in order to "moot the case" and based on other U.S. Supreme Court decisions.

"Neither she nor her attorneys admit their underlying orders violate the Supreme Court decision out there that limits them," Staver said. "But I'm not sure we want to go to the Supreme Court because, number 1, we believe our litigation ended the orders and set the standard, and number 2, the restrictions are gone."

"I think it would be very costly and unwise, and certainly unconstitutional for Gov. Mills to ever consider placing these restrictions again," Staver added.

The court affirmed the judge's dismissal of Calvary's suit and awarded Mills her costs on the appeal.

The Maine Office of the Attorney General, which represented Mills, declined to comment on the decision.

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