STATE OF NEW HAMPSHIRE ROCKINGHAM COUNTY …...8. Plaintiff Shawn Devine is an individual who resides at 1 Surrey Lane, Salem, New Hampshire 03079. 9. Plaintiff R.W.D. is an individual

STATE OF NEW HAMPSHIRE

ROCKINGHAM COUNTY SUPERIOR COURT

Docket No.

SHAWN DEVINE, individually, and on behalf of

R.W.D., his child

Plaintiffs

v.

GOVERNOR CHRISTOPHER T. SUNUNU, In his Official Capacity,

NEW HAMPSHIRE DEPARTMENT OF EDUCATION, SALEM SCHOOL DISTRICT,

SCHOOL ADMINISTRATIVE UNIT #57

Defendants

VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF, AND DAMAGES1

Plaintiffs Shawn Devine, individually, and on behalf of R.W.D., his child, bring this

Verified Complaint for Declaratory Judgment and Injunctive Relief and Damages against

Defendant Governor Christopher T. Sununu, in his official capacity, Defendant New Hampshire

Department of Education, and Defendant Salem School District, School Administrative Unit

#57, to challenge (1) two of Governor Sununu’s recent executive orders (Executive Orders 2020-

08 and 2020-09), which renewed his declaration of a “state of emergency” through June 5, 2020;

and (2) Governor Sununu’s Emergency Orders #1, #19, and #32, the Department’s “emergency”

amendment to ED 306.18(a)(7), and Salem’s adoption of same, which collectively canceled the

rest of the 2019-2020 school year for all New Hampshire public schools, and substituted in its

place an inadequate procedure for remote instruction that is failing to meet the needs of students

1 Plaintiffs are filing contemporaneously with this Complaint an Emergency Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction.

FiledFile Date: 5/22/2020 9:53 AMRockingham Superior Court

E-Filed Document

218-2020-CV-00602

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across the state. Plaintiffs also seek relief, including damages, for violation of their

Constitutional rights.

INTRODUCTION

1. “For over two hundred years New Hampshire has recognized its duty to provide

for the proper education of the children in this State. Since 1647, education has been compulsory

in New Hampshire, and our constitution expressly recognizes education as a cornerstone of our

democratic system.” Claremont School Dist. v. Governor, 138 N.H. 183, 192 (1993)

(“Claremont I”). “[I]n New Hampshire a free public education is at the very least an important,

substantive right.” Id. Indeed, “a constitutionally adequate public education is a fundamental

right.” Claremont School Dist. v. Governor, 142 N.H. 462, 473 (1997) (“Claremont II”)

(emphasis added).

2. “There is no pandemic exception” to these requirements. Berean Baptist Church

v. Governor Roy A. Cooper, III, No. 4:20-CV-81-D, at *2 (E.D.N.C. May 16, 2020) (attached as

Exhibit A). “The Constitution is not suspended when the government declares a state of

disaster.” In re Salon a la Mode, et al., No. 20-0340, at *3 (Tex. May 5, 2020) (Blacklock, J.,

concurring) (quoting In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020))

(emphasis added) (attached as Exhibit B). “Government power cannot be exercised in conflict

with the[] constitution[], even in a pandemic.’” In re Salon a la Mode, et al., No. 20-0340, at *3

(emphasis added). “[A]ll of us – the judiciary, the other branches of government, and our

fellow citizens – must insist that every action our governments take complies with the

Constitution, especially now. If we tolerate unconstitutional government orders during an

emergency, whether out of expediency or fear, we abandon the Constitution at the moment we

need it most.” Id. (emphasis added)

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3. “Any government that has made the grave decision to suspend the liberties of a

free people during a health emergency should welcome the opportunity to demonstrate – both to

its citizens and to the courts – that its chosen measures are absolutely necessary to combat a

threat of overwhelming severity. The government should also be expected to demonstrate that

less restrictive measures cannot adequately address the threat. . . . When the present crisis

began, perhaps not enough was known about the virus to second-guess the worst-case

projections motivating the lockdowns. As more becomes known about the threat and about the

less restrictive, more targeted ways to respond to it, continued burdens on constitutional

liberties may not survive judicial scrutiny.” Id. (emphasis added)

4. New Hampshire, like many states, is confronting this question. While Governor

Sununu’s orders in March 2020 responded to an emerging pandemic about which we had limited

information, New Hampshire no longer has an “emergency,” or even a threat of one, that justifies

the continued shutdown of its schools and economy. “Emergency” measures that appeared to be

Constitutionally appropriate in March are less appropriate now, given the wealth of information

available that demonstrates New Hampshire’s healthcare system never came close to reaching

capacity, and the Coronavirus is not as deadly as previously feared. These measures may also be

increasing transmission rates and prolonging the epidemic.

5. In addition to these general concerns, the Defendants’ actions in this case

concerning education challenge the very fabric of New Hampshire’s constitutional republic: One

of the Department of Education’s own rules (ED 306.18(a)(7)) limits remote instruction to five

days per school year: On March 12, 2020, the day before the Governor first declared a state of

emergency (March 13, 2020), the Department claims it “adopted” an “emergency” amendment to

that rule that removed that five-day limit. This “emergency” amendment paved the way, two

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days later on March 15, 2020, for the Governor to issue Emergency Order #1, the first of three

Emergency Orders ultimately directing school districts to implement remote instruction for the

remainder of the school year. In “amending” ED 306.18(a)(7), however, the Department did not

follow rulemaking procedures required by RSA 541-A and its own rules (ED 214.01-06): the

Department failed to provide notice to the public of the “emergency” amendment or address it at

a public hearing. Instead, the Department first communicated this “emergency” amendment to

the public on March 18, 2020, six days after it claims it was adopted, when it published it on its

website. Making matters worse, Governor Sununu was obviously aware of the Department’s

secret “adoption” of this “emergency” amendment to ED 306.18(a)(7) because he specifically

referenced it in Emergency Order #1 on March 15, three days before the public learned of it.

This uncomfortable fact also suggests Governor Sununu knew of its purported “adoption” much

earlier because, without this amendment, Emergency Order #1 and its directive to implement

remote instruction for more than five days would not have been possible. This sudden change to

remote instruction in schools also violates citizens’ fundamental right to an education under the

New Hampshire Constitution.

6. The fact that two high-level departments in our state government (the Governor’s

office and the Department of Education) fundamentally altered the way in which school districts

educate our children – literally overnight without a hint of explanation or notice to the public –

poses serious questions about transparency and whether the rule of law still exists during this

feigned and prolonged “public health emergency.”

7. Plaintiffs, among other remedies, principally seek a declaratory judgment and

injunctive relief stating that Governor Sununu’s Executive Orders 2020-08 and 2020-09 and

Emergency Orders #1, #19, and #32 are null and void because they exceed his statutory

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emergency powers, violate other applicable statutes governing education, and violate Plaintiffs’

Constitutional rights. Plaintiffs also seek a declaratory judgment and injunctive relief stating that

the Department’s “emergency” amendment to ED 306.18(a)(7) is null and void (as well as any

further attempts to modify that purported amendment), and that Salem should be enjoined from

implementing any further remote instruction.

PARTIES

8. Plaintiff Shawn Devine is an individual who resides at 1 Surrey Lane, Salem,

New Hampshire 03079.

9. Plaintiff R.W.D. is an individual who resides at 1 Surrey Lane, Salem, New

Hampshire 03079.

10. Defendant Christopher T. Sununu is the Governor of New Hampshire and is being

sued in his official capacity. The address of the Governor’s address is 107 North Main Street,

Concord, New Hampshire 03301.

11. Defendant New Hampshire Department of Education is a state agency with a

principal place of business at 101 Pleasant Street, Concord, New Hampshire 03301.

12. Defendant Salem School District, School Administrative Unit #57, is a New

Hampshire School District with a principal place of administrative located at 38 Geremonty

Drive, Salem, New Hampshire 03079.

JURISDICTION AND VENUE

13. This Court has subject matter jurisdiction over this Complaint pursuant to RSA

141-C, RSA 491:7, RSA 491:22, RSA 498:1, and RSA 541-A:23, III.

14. The Court has personal jurisdiction over Defendants because Defendants are

located in New Hampshire, and Defendants’ conduct occurred in New Hampshire. In Claremont

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I, the New Hampshire Supreme Court stated, “[t]he right to an adequate education mandated by

the constitution is not based on the exclusive needs of a particular individual, but rather is a right

held by the public to enforce the State's duty. Any citizen has standing to enforce this right.”

138 N.H. at 192.

15. Venue is appropriate in Rockingham County pursuant to RSA 507:9 because

Plaintiffs reside in this county.

FACTUAL ALLEGATIONS

A. The Plaintiffs

16. Mr. Devine resides with his family in Salem, New Hampshire. His child, R.W.D.,

is currently a sophomore at Salem High School, an excellent student, and plays soccer at a very

high level. R.W.D. is anticipating attracting attention from college athletic recruiters next school

year (2020-2021), which would be R.W.D.’s junior year at Salem High. R.W.D. was

anticipating leveraging R.W.D.’s skills and success on the soccer field to obtain an athletic

scholarship for college.

B. The Constitutional and Statutory Rights to a Public Education in New Hampshire

17. The New Hampshire Constitution states, “Knowledge and learning, generally

diffused through a community, being essential to the preservation of a free government; and

spreading the opportunities and advantages of education through the various parts of the country,

being highly conducive to promote this end; it shall be the duty of the legislators and magistrates,

in all future periods of this government, to cherish the interest of literature and the sciences, and

all seminaries and public schools, to encourage private and public institutions, rewards, and

immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and

natural history of the country; to countenance and inculcate the principles of humanity and

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general benevolence, public and private charity, industry and economy, honesty and punctuality,

sincerity, sobriety, and all social affections, and generous sentiments, among the people.” Part 2,

Art. 83, N.H. Const.

18. Based on this language, the New Hampshire Supreme Court has held “a

constitutionally adequate public education is a fundamental right.” Claremont II, 142 N.H. at

473.

19. Chapter 189 governs school boards, superintendents, and teachers and the

requirements that apply to them. RSA 189:1 and 189:24 dictate the general standards for

education in New Hampshire. RSA 189:1 states “[t]he school board of every district shall

provide standard schools for at least 180 days in each year, or the equivalent number of hours

as required in the rules of the department of education, at such places in the district as will

best serve the interests of education and give to all the pupils within the district as nearly equal

advantages as are practicable.” (Emphasis added.) RSA 189:24 states “[a] standard school is

one approved by the state board of education, and maintained for at least 180 days in each year,

or the equivalent number of hours as required in the rules of the department of education, in a

suitable and sanitary building, equipped with approved furniture, books, maps and other

necessary appliances, taught by teachers, directed and supervised by a principal and a

superintendent, each of whom shall hold valid educational credentials issued by the state

board of education, with suitable provision for the care of the health and physical welfare of

all pupils. A standard school shall provide instruction in all subjects prescribed by statute or by

the state board of education for the grade level of pupils in attendance.” (Emphasis added.)

20. The New Hampshire Department of Education promulgated more specific rules to

effectuate these general requirements. For example, ED 306.18 governs the requirements

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concerning instructional time a school district must maintain for kindergarten, elementary,

middle, and high school. ED 306.18(a)(1) states “[t]he school district shall maintain in each

elementary school, a school year of at least 945 hours of instructional time and in each

kindergarten at least 450 hours of instructional time.” The next section, ED 306.18(a)(2), states

“[t]he school district shall maintain in each middle and high school, a school year of at least 990

hours of instructional time.”

21. Remote learning is permitted under the Department’s rules, but previously only

for a limited time: “A school district may submit a plan to the commissioner that will allow

schools to conduct instruction remotely for up to 5 days per year when the school has been

closed due to inclement weather or other emergency. The plan shall include procedures for

participation by all students. Academic work shall be equivalent in effort and rigor to typical

classroom work. There shall be an assessment of all student work for the day. At least 80

percent of students shall participate for the day to count as a school day.” ED 306.18(a)(7)

(emphases added).

22. If the Department wishes to modify any of its rules (including the rules above) or

create new rules, it must follow the statutory procedure for rulemaking in RSA 541-A and ED

214. Chapter 541-A “shall govern all agency rulemaking procedures, hearings, and appeals.”

RSA 541-A:41. ED 214 more specifically governs the Department’s public comment hearings

for rulemaking.

23. RSA 541-A:3 states, “[e]xcept for interim or emergency rules, an agency shall

adopt a rule” by seven-step process:

I. Filing a notice of the proposed rule under RSA 541-A:6, including a fiscal impact statement and a statement that the proposed rule does not violate the New Hampshire constitution, part I, article 28-a; II. Providing notice to occupational licensees or those who have made timely

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requests for notice as required by RSA 541-A:6, III; III. Filing the text of a proposed rule under RSA 541-A:10; IV. Holding a public hearing and receiving comments under RSA 541-A:11; V. Filing a final proposal under RSA 541-A:12; VI. Responding to the committee when required under RSA 541-A:13; and VII. Adopting and filing a final rule under RSA 541-A:14.

24. The procedure above references Part I, Article 28-a of the New Hampshire

Constitution, which states, “The state shall not mandate or assign any new, expanded or modified

programs or responsibilities to any political subdivision in such a way as to necessitate additional

local expenditures by the political subdivision unless such programs or responsibilities are fully

funded by the state or unless such programs or responsibilities are approved for funding by a

vote of the local legislative body of the political subdivision.”

25. The rest of RSA 541-A then provides further requirements for the rulemaking

process, including, but not limited to, the specific requirements for how a rule should be

proposed (RSA 541-A:3-a), the requirements for a fiscal impact statement (RSA 541-A:5), 20

days’ notice of the intent to hold a public hearing and receive comments on the proposed rule

(RSA 541-A:6), the procedures for a public hearing (RSA 541-A:11), the filing process and

requirements for the final proposed rule (RSA-A:12), and the rule’s final adoption (RSA-A:14).

26. Then, as noted above, the Department’s own rules provide even more specific

procedures for the public hearings it is required to hold during the rulemaking process. See ED

214.01-06.

27. The Department is permitted to “adopt an emergency rule if it finds . . . that an

imminent peril to the public health or safety requires adoption of a rule with less notice than is

required under RSA 541-A:6.” RSA 541-A:18, I (emphases added). Some, but not all, of the

requirements for rulemaking are eliminated when adopting an emergency rule: “The rule may be

adopted without having been filed in proposed or final proposed form and may be adopted after

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whatever notice and hearing the agency finds to be practicable under the circumstances. The

agency shall make reasonable efforts to ensure that emergency rules are made known to persons

who may be affected by them.” Id. Thus, notice (just not 20 days’ notice) and a public hearing

are still required. See id. Moreover, RSA 541-A:18 does not eliminate the requirement of a

fiscal impact statement or a statement that the proposed rule does not violate Part I, Article 28-a

of the New Hampshire Constitution. See id.

28. Even with the somewhat relaxed rulemaking requirements above, an emergency

rule that is adopted still must include:

(a) The name and address of the agency. (b) The statutory authority for the rule. (c) Whether the intended action is an adoption, amendment, or repeal. (d) The rule number and title. (e) A signed and dated statement by the adopting authority explaining the nature of the basis for the emergency rule, including an explanation of the effect upon the state if the emergency rule were not adopted. (f) A listing of people, enterprises, and government agencies affected by the rule. (g) The name, address, and telephone number of an individual in the agency able to answer questions on the emergency rule.

RSA 541-A:18, III.

29. RSA 541-A:18 states further: “[e]mergency rules adopted under this section shall

not be adopted solely to avoid the time requirements of this chapter. The committee may

petition the adopting agency to repeal the rule if it determines that the statement of emergency

required by RSA 541-A:18, III(e) is inadequate and does not demonstrate that the rule is

necessary to prevent an imminent peril to the public health or safety.” RSA 541-A:18, IV.

B. The Novel Coronavirus

30. In late 2019 or early 2020, a novel viral infection known as the Novel

Coronavirus (COVID-19) began circulating in the United States, first on the west coast and then

on the east coast. Dozens of residents in two nursing homes in Washington state became ill and

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died; they were confirmed to have been infected with COVID-19, the aforementioned novel

virus that originated in Hubei province, China. Other cases soon began to appear throughout the

country.

31. The various models earlier this year suggested this virus would wreck disaster on

the United States, spreading rapidly and causing millions of deaths. On March 16, 2020, a 20-

page report from Neil Ferguson’s team at Imperial College London “warned that an uncontrolled

spread of the disease could cause as many as 510,000 deaths in Britain” and “up to 2.2 million

deaths in the United States.”2 This report “triggered a sudden shift in the government’s

comparatively relaxed response to the virus” and “influenced the White House to strengthen its

measures to isolate members of the public.”3

C. Governor Sununu’s Emergency Powers

32. RSA 4:45 and 4:47 provide the Governor with certain powers during an

emergency.

33. RSA 4:45, I states, “[t]he governor shall have the power to declare a state of

emergency . . . by executive order if the governor finds that a natural, technological, or man-

made disaster of major proportions is imminent or has occurred within this state, and that the

safety and welfare of the inhabitants of this state require an invocation of the provisions of this

section.”

34. A “state of emergency” is defined as a “condition, situation, or set of

circumstances deemed to be so extremely hazardous or dangerous to life or property that it is

necessary and essential to invoke, require, or utilize extraordinary measures, actions, and

procedures to lessen or mitigate possible harm.” RSA 21-P:35, VIII.

2 https://www.nytimes.com/2020/03/17/world/europe/coronavirus-imperial-college-johnson.html 3 Id.

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35. “A state of emergency shall terminate automatically 21 days after its declaration

unless it is renewed under the same procedures set forth in paragraph I of this section.” RSA

4:45, II. “The governor may, by executive order, renew a declaration of a state of emergency as

many times as the governor finds is necessary to protect the safety and welfare of the inhabitants

of this state.” Id.

36. “During the existence of a state of emergency, and only for so long as such state

of emergency shall exist, the governor shall have and may exercise the following additional

emergency powers: . . . To perform and exercise such other functions, powers, and duties as are

necessary to promote and secure the safety and protection of the civilian population.” RSA 4:45,

III(e).

37. In addition, “[t]he governor shall have emergency management authority as

defined in RSA 21-P:35, V, and pursuant to such authority may exercise emergency management

powers including: . . . The power to make, amend, suspend and rescind necessary orders, rules

and regulations to carry out the provisions of this subdivision in the event of a disaster beyond

local control.” RSA 4:47, III. “Emergency management” is defined as “the preparation for and

the carrying out of all emergency functions, including but not limited to emergency response and

training functions, to prevent, minimize, and repair injury or damage resulting from the

occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting

from any natural or human cause, including but not limited to fire, flood, earthquake, windstorm,

wave actions, technological incidents, oil or chemical spill, or water contamination requiring

emergency action to avert danger or damage, epidemic, air contamination, blight, drought,

infestation, explosion, terrorist act, or riot.” RSA 21-P:35, V.

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38. “If the governor finds that maintaining the state of emergency is no longer

justified, the governor shall issue an executive order terminating the state of emergency.” RSA

4:45, II(b).

D. The Government’s Emergency Measures to Address the Coronavirus

39. Pursuant to the powers above, Governor Sununu issued a series of executive

orders and emergency orders in March, April, and May 2020 to address the outbreak of the

Novel Coronavirus (COVID-19).

40. On March 13, 2020, Governor Sununu issued Executive Order 2020-04 (“An

order declaring a state of emergency due to Novel Coronavirus (COVID-19)”), which declared a

state of emergency for the entire state of New Hampshire. N.H. Exec. Order No. 2020-04 (Mar.

13, 2020).4 That Order stated, “Pursuant to RSA 4:45 and RSA 4:47, while this Order is in

effect, additional temporary orders, directive, rules and regulations may be issued either by the

Governor or by designated State officials with written approval of the Governor.” Id. ¶ 18.

41. Two days later, on March 15, 2020, Governor Sununu issued Emergency Order

#1 Pursuant to Executive Order 2020-04. N.H. Emer. Order No. 1 (Mar. 15, 2020).5 That Order

stated “[a]ll public K-12 school districts within the state of New Hampshire shall transition to

temporary remote instruction and support for a three week period beginning Monday, March

16th, 2020 and ending Friday, April 3rd, 2020.” Id. ¶ 1. It directed “[e]ach school district” to

“develop a temporary remote instruction and support plan pursuant to emergency rule ED

306.18(a)(7).” Id. ¶ 2 (emphasis added). “Beginning Monday, March 16, 2020, all public K-12

schools shall be closed to students to allow each school district to develop remote instruction and

remote support capacity and transition to temporary remote instruction and support.” Id. ¶ 3.

4 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-04.pdf 5 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-1.pdf

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Then, “[e]ach school district shall begin providing temporary remote instruction and support to

all students no later than Monday, March 23rd, 2020, with such temporary remote instruction

and support to continue through Friday, April 3rd, 2020.” Id. ¶ 4.

42. Emergency Order #1 cites and relies on ED 306.18(a)(7) in directing school

districts to implement remote instruction for 10 days, five more than the five-day-limit provided

in the rule. Notably, although Governor Sununu’s emergency powers include “[t]he power to

make, amend, suspend and rescind necessary orders, rules and regulations to carry out the

provisions of this subdivision in the event of a disaster beyond local control,” see RSA 4:47, III,

Emergency Order #1 did not suspend ED 306.18(a)(7), or the requirements of RSA 189:1 or

RSA 189:24 (both of which require 180 school days).

43. Rather, Emergency Order #1 referenced “emergency rule ED 306.18(a)(7)” not

the original version of the rule. See N.H. Emer. Order No. 1, ¶ 2 (Mar. 15, 2020) (emphasis

added). As fate would have it, three days before Emergency Order #1 was issued and the day

before Governor Sununu’s initial declaration of a “state of emergency” in Executive Order

2020-04, the Department of Education, on March 12, 2020, passed an emergency amendment to

ED 306.18(a)(7) that removed the five-day limit on remote instruction. This “emergency”

amendment to, or new version of, ED 306.18(a)(7) was posted and linked to on the Department’s

website, as follows:6

6 https://www.education.nh.gov/who-we-are/division-of-educator-and-analytic-resources/bureau-of-educational-opportunities/public-school-approval-office/remote-instruction

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44. When the link on the web page above is clicked, the following PDF document

appears:7

This “emergency rule” does not appear in the Department’s online compendium of

administrative rules and regulations.8 It also does not resemble, in the slightest, a “final rule.”

Rather, it looks like a draft or “proposed rule” (complete with strikethrough and italicized and

bolded insertions) that should have been scheduled for a public hearing.

45. Indeed, upon information and belief, the Department of Education did not follow

any of the procedures for rulemaking in RSA 541-A:3, or even the somewhat relaxed rulemaking

requirements for emergency rules under RSA 541-A:18, when it adopted this “emergency”

amendment to ED 306.18(a)(7), including, but not limited to: failing to provide notice of its

intent to propose this emergency rule, failing to hold a hearing or receive comments on it, failing

to file a fiscal impact statement, and failing to include a statement that the proposed rule does not

violate Part I, Article 28-a of the New Hampshire Constitution. Indeed, the Department’s own

7 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020/er-ed306-18a7-amend.pdf 8 https://gencourt.state.nh.us/rules/state_agencies/ed.html

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press releases posted on its website9 leading up to the rule’s supposed March 12 adoption do not

mention the proposed rule. Its Agenda and Meeting Materials for its hearings on January 9,

2020, February 13, 2020, March 12, 2020 (the day the emergency rule was adopted), or April 9,

2020, do not mention the proposed rule. The Minutes for the January 9 and February 13

meetings also do not mention it.10 (Curiously, there are no Minutes posted on the Department’s

website for the March 12 or April 9 meetings.) Further, the emergency rule above fails to

comply with all but two of the requirements in RSA 541-A:18, III: it contains only a reference

that it is an amendment, and the rule number and title, but none of the other requirements,

including (most importantly) the statement of emergency in RSA 541-A:18, III(e), and

referenced and emphasized in RSA 541-A:18, IV.

46. Even more alarming: upon information and belief, the Department first published

the web page above containing information about remote instruction, including the link to the

“emergency” amendment to ED 306.18(a)(7),11 on March 18, 2020:

9 https://www.education.nh.gov/who-we-are/commissioners-office/communications/press-releases 10 https://www.education.nh.gov/who-we-are/state-board-of-education/2020-state-board-meetings 11 https://www.education.nh.gov/who-we-are/division-of-educator-and-analytic-resources/bureau-of-educational-opportunities/public-school-approval-office/remote-instruction

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The date of March 18, 2020, above, to the left of the Google result is the date of publication of

the web page.

47. This means that, given the Department failed to follow rulemaking procedures in

“adopting” the “emergency” amendment to ED 306.18(a)(7), including providing notice to the

public and addressing it at a public hearing, the first time the Department communicated to the

public that it adopted this “emergency” amendment was March 18, six days after the date it

claims it adopted it (March 12).

48. Even worse: Governor Sununu was obviously aware of the “emergency”

amendment to ED 306.18(a)(7) at least three days earlier, on March 15, 2020, because he

referenced it in Emergency Order #1. See N.H. Emer. Order No. 1, ¶ 2 (Mar. 15, 2020).

Governor Sununu’s knowledge of the existence of the “emergency” amendment to ED

306.18(a)(7) several days before the Department communicated it to the public, particularly so

he could include it in Emergency Order #1, suggests he or his office may have coordinated with

the Department in pushing for the “adoption” of the “emergency” amendment without regard for

the rulemaking process. Indeed, without this “emergency” amendment, it would have been

impossible (illegal, actually) to direct school districts to implement remote instruction for more

than five days.12 Instead, someone in the Governor’s office and/or the Department determined

an “emergency” amendment to ED 306.18(a)(7) needed to be pushed through as soon as

possible, without notice, so Emergency Order #1 could be issued immediately.

49. Perhaps believing it could escape culpability for this blatant circumvention of the

rulemaking process, the Department then attempted to propose a change to the “emergency”

version of ED 306.18(a)(7), as if it had been validly adopted. The Department recently posted its

12 Alternatively, Governor Sununu could have attempted to suspend ED 306.18(a)(7) pursuant to the emergency powers he acquired under RSA 4:47, III, by declaring a “state of emergency,” but he chose not to do so.

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Agenda and Meeting Materials for its May 14, 2020, meeting. The Agenda listed an “initial

proposal” for ED 306.18(a)(7):13

50. The proposed change to ED 306.18(a)(7) then appeared in the Meeting Materials

for the May 14 meeting:14

13 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-05/state-board-agenda-20200514.pdf 14 https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/2020-05/state-board-materials-20200514.pdf

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51. It is important to note four issues with the above proposal: First, as noted above, it

purports to modify the emergency version of ED 306.18(a)(7) that was purportedly “adopted” on

March 12 in contravention of rulemaking procedures, not the original version of the rule.

Second, it appears very similar in format (i.e., a draft proposal with strikethrough and italicized

and bolded insertions) to the “emergency” amendment the Department claims it adopted on

March 12. Third, if adopted as written above, this new version of ED 306.18(a)(7) would allow

remote instruction year-round and, thus, pave the way for the Governor to cancel school in the

fall of 2020 and direct school districts to continue with remote instruction indefinitely.

(Emergency rules are effective for only 180 days. See RSA 541-A:18, II.) Fourth, since it

appears to be a proposal for a normal rule, not an emergency rule, the Department had to comply

with the rulemaking requirements in RSA 541-A:3, such as, for example, providing 20 days’

notice of the proposed change. See RSA 541-A:6. Once again, it failed to do so: upon

information and belief, the Department did not provide any notice for the proposed change above

to the “emergency” version of ED 306.18(a)(7).

52. Despite the Department’s egregious rulemaking failures and Governor Sununu’s

knowledge of the “adoption” of this “emergency” amendment to ED 306.18(a)(7) before the

public was aware, Governor Sununu and the Department proceeded with this brand new

requirement – passed under cover of night – for remote instruction in New Hampshire public

schools.

53. On March 27, 2020, Governor Sununu then issued Emergency Order #19

Pursuant to Executive Order 2020-04. N.H. Emer. Order No. 19 (Mar. 27, 2020).15 That Order

extended the aforementioned period of remote instruction another month: “All public K-12

15 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-19.pdf

20

school districts within the state of New Hampshire shall maintain their provision of temporary

remote instruction and support, which began pursuant to Emergency Order #1, through Monday,

May 4, 2020.” Id. ¶ 1. Despite the invalidity of the emergency rule shown above, it did not

suspend, let alone mention, ED 306.18(a)(7), or the requirements of RSA 189:1 or RSA 189:24.

54. On April 3, 2020, Governor Sununu then issued Executive Order 2020-05

(“Extension of State of Emergency Declared in Executive Order 2020-04”), which “renew[ed]

the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and extend[ed]

the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,” or through

April 24, 2020. N.H. Exec. Order No. 2020-05 (Apr. 3, 2020).16 That Order extended “[a]ll

provisions of Executive Order 2020-04, and all Emergency Orders issued pursuant thereto . . . .”

Id. ¶ 1.

55. Almost two weeks later, on April 16, 2020, Governor Sununu issued Emergency

Order #32 Pursuant to Executive Order 2020-04, as Extended by Executive Order 2020-05. N.H.

Emer. Order No. 32 (Apr. 16, 2020).17 That Order extended the period of remote instruction for

the rest of the school year, effectively canceling the school year: “All public K-12 school

districts within the state of New Hampshire shall maintain their provision of temporary remote

instruction and support, which began pursuant to Emergency Order #1 and was extended

pursuant to Emergency Order #19, through the end of each school district’s school year.” Id. ¶ 1.

Again, despite the invalidity of the emergency rule shown above, it also did not suspend, let

alone mention, ED 306.18(a)(7), or the requirements of RSA 189:1 or RSA 189:24.

56. On April 24, 2020, Governor Sununu issued Executive Order 2020-08 (“Second

Extension of State of Emergency Declared in Executive Order 2020-04”), which again

16 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-05.pdf 17 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-32.pdf

21

“renew[ed] the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and

extend[ed] the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,”

or until May 15, 2020. N.H. Exec. Order 2020-08 (Apr. 24, 2020).18 That Order extended “[a]ll

provisions of Executive Order 2020-04 as extended by Executive Order 2020-05, and all

Emergency Orders issued pursuant thereto . . . .” Id. ¶ 1.

57. On May 15, 2020, Governor Sununu issued Executive Order 2020-09 (“Third

Extension of State of Emergency Declared in Executive Order 2020-04”), which again

“renew[ed] the Declaration of a State of Emergency due to Novel Coronavirus (COVID-19) and

extend[ed] the State of Emergency declared in Executive Order 2020-04 for a period of 21 days,”

or until June 5, 2020. N.H. Exec. Order 2020-09 (May 15, 2020).19 That Order extended “[a]ll

provisions of Executive Order 2020-04 as extended by Executive Orders 2020-05 and 2020-08,

and all Emergency Orders issued pursuant thereto . . . .” Id. ¶ 1.

E. The Purpose of the Shutdown and the Current State of the Coronavirus in New Hampshire

58. The purpose and rationale for Governor Sununu’s orders shutting down the New

Hampshire economy were to “slow the spread of COVID-19.”20 Slowing the spread of the

Coronavirus would avoid overwhelming New Hampshire’s healthcare system and allowing

COVID-19-infected Granite Staters to die, untreated and uncared for, at home or in some

hospital hallway. Indeed, a group of New Hampshire academics wrote to Governor Sununu on

March 23, 2020, that “New Hampshire currently has just over 3,000 hospital beds,” and “[b]ased

on our projections and those prepared by Harvard, our hospital system will be overwhelmed

18 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-08.pdf 19 https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/2020-09.pdf 20 https://www.wmur.com/article/live-at-3-sununu-gives-update-on-covid-19/31941704

22

within three weeks.”21 Two New Hampshire mayors publicly demanded Governor Sununu issue

a stay-at-home order because, “the sooner everyone stays home, avoids unnecessary travel and

non-essential activities, the better chance we have to flatten the curve and save lives.”22

59. Thus, this strategy’s purpose was not to prevent people from contracting the

Coronavirus. After all, there is no vaccine. Rather, it was to delay their contracting it so New

Hampshire’s healthcare system would not receive a large influx of Coronavirus cases they were

not equipped to address.

60. After over a month of applying this strategy, Governor Sununu acknowledged on

April 29, 2020, that it was wildly successful. In a news conference that day, he noted New

Hampshire has “flattened the curve.”23 He cited the number of hospitalizations as “one of the

definitive markers of how close you are to hitting capacity on your health care system,” and then

reported, “[t]oday’s census [of the number of hospitalized Coronavirus patients] is about 100,

and we have a little over 1000 beds of capacity.” He continued: “We have multiple times

available [hospital bed] capacity. You know, we could literally have 10 times – God forbid – 10

times the number of hospitalizations, and we could still very easily be able to handle that

capacity.”

61. Governor Sununu was correct. The New Hampshire Department of Health and

Human Services reported a total of 1,019 COVID-19 beds. As of April 30, 2020, there were 112

current hospitalizations. (All statistics were obtained from the New Hampshire Department of

Health and Human Services website24 and the New Hampshire Public Radio website.25 Three of

21 https://www.concordmonitor.com/Shelter-in-place-33500097 22 https://manchesterinklink.com/craig-and-donchess-urge-sununu-for-stronger-measures-against-covid-19/ 23 https://www.insidesources.com/opinion-if-weve-flattened-the-curve-why-is-new-hampshire-still-closed/ 24 https://www.nh.gov/covid19/news/updates.htm 25 https://www.nhpr.org/post/explore-data-tracking-covid-19-new-hampshire#stream/0

23

those hospitalizations were new. At the time, there were also 84 ICU beds for the seriously-ill

Coronavirus patients, and New Hampshire was using fewer than 30.26

62. New Hampshire never got close to breaking the curve. Its curve remained flat,

and the goal of the Governor’s initial shutdown orders was successfully achieved. There is no

longer an “emergency” in New Hampshire, or even a threat of one.

63. Despite the success of that goal, several days beforehand, Governor Sununu

issued Executive Order 2020-08, extending the declaration of a “state of emergency,” as well as

all Emergency Orders, another 21 days, April 24 to May 15. See N.H. Exec. Order 2020-08

(Apr. 24, 2020).27 Further, a week before that, Governor Sununu issued Emergency Order #32,

which canceled the school year and directed all school districts to continue with remote

instruction.

64. As of May 1, 2020, the number of current hospitalizations dropped from 112 to

103, despite eight new hospitalizations, and the current hospitalization rate had steadily dropped

to 8% (from 10%-11% the week before). Also, at the time, there were just 1,249 current cases of

Coronavirus in New Hampshire (with 980 recovered), and just 81 total deaths.

65. As of Tuesday, May 19, 2020, the number of current hospitalizations was 105

against 2,264 current cases, producing a current hospitalization rate of just 4.6%. Also, at the

time, there were just 69 new cases (and dropping steadily over the last two weeks); and 182 total

deaths.

66. New Hampshire’s hospitals are so underwhelmed that they furloughed and laid

off employees. For example, on April 15, 2020, Solution Health, which owns and operates Elliot

Hospital System and Southern New Hampshire Health, furloughed 650 employees and cut the

26 https://covid19.healthdata.org/united-states-of-america/new-hampshire 27 https://www.governor.nh.gov/news-media/orders-2020/documents/2020-08.pdf

24

pay or hours of another 750 employees, affecting nearly 20% of its workforce.28 The company is

losing more than $24 million per month in revenue after canceling elective surgeries and services

to prepare for an anticipated surge in Coronavirus patients that never arrived. On April 3, 2020,

the ownership group that owns Lakes Region General Hospital and Franklin Regional Hospital

announced it was furloughing more than 600 employees, also in part due to the cancellation of

elective and non-urgent surgeries, procedures, and outpatient visits, which resulted in more than

a 50% loss of revenue.29

67. Apart from the fact New Hampshire’s healthcare system is not even close to

capacity, the mortality rate for Coronavirus is far lower than initially projected. The mortality

rate (number of total deaths divided by the total population) in New Hampshire is 0.008% and

0.024% in the United States, far below the 0.1% mortality rate for the seasonal flu. The case

fatality rate (number of total deaths divided by the total confirmed cases) in New Hampshire is

4.1% and 5.9% in the United States.

68. Regarding children, as of May 19, 2020, there are only 155 known cases of the

Coronavirus in persons under 20 years old and zero deaths. Indeed, just over a week ago, NH

DHHS confirmed that not a single, healthy New Hampshire resident under the age of 60 had died

from COVID-19.30 Moreover, on April 29, 2020, the UK Daily Mail reported that experts could

not find a single child under the age of 10 who had transmitted the Coronavirus to an adult.31

69. Rather, COVID-19 appears to be highly selective in those among the population

to whom it poses the most risk: of 133 deaths for which demographics are known, 126 (94.7%)

28 https://www.unionleader.com/news/health/coronavirus/elliot-sister-hospitals-announce-furloughs-pay-cuts-for-20-of-workforce/article_d754b0e9-4581-5037-856a-a8ad86b51907.html 29 https://www.unionleader.com/news/health/coronavirus/lakes-region-hospitals-to-furlough-more-than-600-employees/article_d9d43187-b2c0-5250-b056-25e9f1474d03.html 30 https://www.insidesources.com/dhhs-confirms-not-a-single-healthy-granite-stater-under-60-has-died-from-covid-19/ 31 https://www.dailymail.co.uk/news/article-8271703/Experts-single-child-10-passed-coronavirus-adult.html

25

of those deaths occurred in individuals above the age of 60, and 84 (63%) of those deaths

occurred in individuals above the age of 80. Indeed, on May 5, 2020, it was reported that 66

deaths attributed to COVID-19 in New Hampshire were in nursing homes.32 These statistics are

buttressed by data from the Centers for Disease Control and Prevention: “as of May 13, those

older than 85 are 314 times more likely to die of COVID-19 than those aged 25–34; those under

15, by contrast, are 43 times less likely to die of the disease than those aged 25–34.”33 In contrast,

the flu is 17 times more deadly than COVID-19 for people under the age of 25 (even with pre-

existing conditions).34 Yet our schools remained closed, and children and their parents are being

forced to navigate this brand new system of remote instruction.

70. Less restrictive measures have always been available to address the risk the

Coronavirus poses to the elderly. NH DHHS has always had the authority (without the need for

executive action from the Governor, let alone shutting down schools and the entire New

Hampshire economy) to address that segment of the population through its own procedures for

combating communicable diseases. Section (r) of He-P 301.05 (titled “Restriction and Control

Measures for Isolation and Quarantine for Specific Diseases”) states “For any communicable

disease that poses a threat to the public’s health and not already described in He-P 301.05 [list

of known communicable diseases], all cases, suspect cases, and close contacts of cases or

suspect cases of a communicable disease who work in sensitive occupations, such as healthcare,

food service, and child care, or who are otherwise located in a congregate setting, shall be

excluded or restricted from certain activities until they are no longer infectious in accordance

with RSA 141-C:4 if necessary to protect the health and safety of the public from a

32 https://manchesterinklink.com/nh-data-18-covid-19-deaths-at-hanover-hill-66-total-nursing-home-deaths/ 33 https://freopp.org/estimating-the-risk-of-death-from-covid-19-vs-influenza-or-pneumonia-by-age-630aea3ae5a9 34 See id.

26

communicable disease, and based on the best available guidance and recommendations from the

Centers for Disease Control and Prevention or other established sources.” (Emphasis added.)

Given these measures that NH DHHS has had at its disposal for a long time, the Governor’s

orders above and the Department’s actions were never necessary.

71. Children and healthy adults under 60 are not at risk with this virus. COVID-19

presents a statistically insignificant threat to the health of children, young adults, and healthy

adults of middle and even slightly advanced age.

72. There is also growing evidence that shutting down society is increasing

transmission of the Coronavirus. For example, in New York – the worst epicenter for the

Coronavirus in the United States – 66% of new Coronavirus hospitalizations consist of people

who stayed home: they are either retired or unemployed and not commuting to work on a regular

basis.35 Meanwhile, the neighboring countries of Sweden and Denmark (which have similar

social structures, demographics, and health care systems) took wildly different approaches to

combatting the spread of the Coronavirus: Denmark locked down its schools, borders,

restaurants, cafes, and shops, while Sweden merely encouraged citizens to use common sense,

work from home if possible, and not gather in crowds over 50, but kept schools, bars, gyms, and

restaurants open.3637 The resulting infection rate between the two countries was approximately

the same; Sweden’s infection rate had stabilized; and Sweden’s mortality rate was lower than

most major European countries (which shut down their economies).38

35 https://www.nydailynews.com/coronavirus/ny-coronavirus-cuomo-coronavirus-stats-20200506-eyqui4b5lfdn7g6cqswkf6otly-story.html 36 https://www.telegraph.co.uk/news/2020/05/05/sweden-suppressed-infection-rates-without-lockdown/ 37 https://www.webmd.com/lung/news/20200501/sweden-sticks-with-controversial-covid19-approach 38 https://www.telegraph.co.uk/news/2020/05/05/sweden-suppressed-infection-rates-without-lockdown/

27

73. There is no “state of emergency” in New Hampshire, nor is there any threat to our

state’s health care system, let alone to children or healthy adults. The original need for shutting

down the New Hampshire economy no longer exists, and there exists no basis for Governor

Sununu’s recent orders extending that “state of emergency” and the resulting closure of all New

Hampshire school districts. The virus is also nowhere near as deadly as initially projected. The

continuing shutdown is preventing the New Hampshire population from achieving “herd

immunity,” which would ultimately eradicate the virus much more quickly than “slowing the

spread” by forcing the shutdown of businesses, closure of schools, and ordering people to stay

home. It is also destroying the state’s economy.

F. The Impact of Defendants’ Actions on the Education of Mr. Devine’s Child and Other Children in the State

74. As noted above, the Department adopted an “emergency rule” amendment to ED

306.18(a)(7) without following rulemaking procedures, and then Governor Sununu’s Executive

Orders and resulting Emergency Orders temporarily directed school districts to implement

remote instruction and then move to that framework permanently for the remainder of the 2019-

2020 school year.

75. The Salem School District followed these directives and implemented remote

instruction, first temporarily and then for the rest of the school year. Indeed, the Salem School

District wholly embraced remote instruction: The home page of its website now promotes

“Distance Learning & Covid-19 Support.”39 The government, including the Department of

Education, has contemplated continuing with remote instruction in the fall of 2020.

76. Although remote learning sounds wonderful in theory, leaving children alone to

engage in self-directed electronic learning is grossly inadequate to meet the educational needs of

39 https://www.sau57.org/ssd

28

New Hampshire children, and the requirements of the New Hampshire Constitution and

applicable statutes and rules.

77. R.W.D. – although a stellar student and athlete – still requires guidance from

teachers and counselors to ensure R.W.D. meets grade-level expectations and can meet the

requirements of colleges and universities to which R.W.D. will ultimately apply.

78. R.W.D.’s father, Mr. Devine, works all day and is unable to supervise R.W.D.

during what should be a full school day. He has neither the training nor the resources to provide

a home-school environment for R.W.D.

79. Although the Salem School District has attempted to provide remote instruction

and online learning substitutes for attendance at school, they are inadequate to meet R.W.D.’s

educational needs, and the similar needs of many other students.

80. The assignments and work provided are inadequate in that they require R.W.D. to

dedicate only two or three hours of time to complete those assignments. When summed up over

the last eight weeks during which remote instruction has been the norm, the hours R.W.D. and

other students will spend “attending school” this year will not meet the 990 hours of instruction

required under Chapter 189 and ED 306.18(a)(2).

81. Also, R.W.D., like most students, needs supervision and encouragement that

results from attendance at an actual school where teachers are present to assist. R.W.D. cannot

succeed in a non-structured environment, and Mr. Devine cannot provide that structure that

R.W.D.’s school is supposed to provide.

82. R.W.D. is not receiving even a basic education during this period of “remote

instruction.”

29

83. In addition to the lack of a basic education, R.W.D. has been prevented from

participating in any school-sponsored sports or other extracurricular activities, including soccer,

in which R.W.D. has excelled tremendously. If remote instruction is implemented in the fall of

2020, and R.W.D. is again forced to spend time away from school-sponsored sports or other

extracurricular activities, it will jeopardize R.W.D.’s financial prospects for college and

potentially negatively impact the next 10 years of R.W.D.’s college and professional career.

CLAIMS

COUNT I (Declaratory Judgment)

(Plaintiffs v. New Hampshire Department of Education)

84. Plaintiffs repeat and incorporate by reference the allegations of the paragraphs

above as if fully stated herein.

85. There is a genuine and bona fide dispute and an actual controversy and

disagreement between Plaintiffs and the Department regarding whether the emergency

amendment to ED 306.18(a)(7) was adopted according to the rulemaking procedures in RSA

541-A, and whether the Department is following the same rulemaking procedures for its current

proposed change to ED 306.18(a)(7).

86. RSA 541-A sets forth an elaborate set of procedures and requirements for

adopting rules, including emergency rules.

87. As described above, the Department failed to follow the large majority of these

procedures and requirements and, instead, adopted an emergency amendment to ED

306.18(a)(7), which lifted the five-day limit for remote instruction, literally overnight, and

appeared not to communicate the existence of that amendment to the public until six days after it

claims it adopted it. This amendment paved the way for Governor Sununu’s Emergency Orders

30

#1, #19, and #32, which directed all school districts to implement remote instruction for the

remainder of the 2019-2020 school year.

88. The Department is now attempting to propose a change to the “emergency”

amendment it improperly adopted, again without following the rulemaking procedures in RSA

541-A.

89. Pursuant to the RSA 491:22, Plaintiffs request, in good faith, that this Court

declare the following:

a. The emergency amendment to ED 306.18(a)(7) is null and void because

the Department failed to follow proper rulemaking procedures under RSA

541-A.

b. Any further emergency amendment or rule adopted by the Department in

connection with ED 306.18(a)(7) and in response to the Coronavirus

issued after the date of any order issued in this proceeding that does not

comply with the applicable requirements of RSA 541-A is void ab initio.

COUNT II (Declaratory Judgment)

(Plaintiffs v. Governor Sununu)



91. There is a genuine and bona fide dispute and an actual controversy and

disagreement between Plaintiffs and Governor Sununu regarding whether Executive Orders

2020-08 and 2020-09 and Emergency Orders #1, #19, and #32 are valid exercises of Governor

Sununu’s emergency powers under RSA 4:45, whether they violate Plaintiffs’ right to an

31

education under the New Hampshire Constitution, and whether they violate applicable statutes

and rules.

92. RSA 4:45, I permits the Governor to declare a “state of emergency . . . by

executive order if the governor finds that a natural, technological, or man-made disaster of major

proportions is imminent or has occurred within this state, and that the safety and welfare of the

inhabitants of this state require an invocation of the provisions of this section.” (Emphasis

added.)

93. A “state of emergency” is defined as a “condition, situation, or set of

circumstances deemed to be so extremely hazardous or dangerous to life or property that it is

necessary and essential to invoke, require, or utilize extraordinary measures, actions, and

procedures to lessen or mitigate possible harm.” RSA 21-P:35, VIII (emphasis added).

94. Although “[a] state of emergency shall terminate automatically 21 days after its

declaration,” “[t]he governor may, by executive order, renew a declaration of a state of

emergency as many times as the governor finds is necessary to protect the safety and welfare of

the inhabitants of this state.” RSA 4:45, II (emphasis added). If a “state of emergency is no

longer justified, the governor shall issue an executive order terminating the state of

emergency.” RSA 4:45, II(b) (emphasis added).

95. As noted above, the purpose of the Governor’s various executive and emergency

orders was to “slow the spread” of the Coronavirus so that New Hampshire’s healthcare system

would not be overwhelmed. This was the “emergency” necessary to implement these orders.

96. By the Governor’s own admission and various other sources, however, New

Hampshire’s healthcare system has not come close to being overwhelmed. Rather, New

Hampshire’s COVID-dedicated hospital beds have reached just over 10% capacity, remained

32

there for a significant period of time, and then decreased during the time the Governor’s prior

executive and emergency orders were in place. There is no “emergency” in New Hampshire.

Despite these facts, Governor Sununu issued Executive Orders 2020-08 and 2020-09 and

Emergency Orders #1, #19, and #32.

97. Governor Sununu has exceeded his authority under RSA 4:45 in issuing these

Orders.

98. In addition, the New Hampshire Constitution provides everyone with a

fundamental right to education. Further, RSA 189:1, RSA 189:24, and ED 306.18(a)(2) require

that students receive 180 days of school, or 990 hours of instruction, and the original version of

ED 306.18(a)(7) allows for only five days of remote instruction. Governor Sununu’s Emergency

Orders #1, #19, and #32 violate these requirements because they forced students to forego a

basic education and saddled them with an inadequate system of remote instruction that neither

provides them with the required amount of instruction or the guidance and supervision necessary

to achieve same.

99. Pursuant to the RSA 491:22, Plaintiffs request, in good faith, that this Court

declare the following:

a. Executive Orders 2020-08 and 2020-09 and Emergency Orders #1, #19,

and #32 are null and void because they were not valid exercises of

Governor Sununu’s authority under RSA 4:45 and 4:47.

b. Emergency Orders #1, #19, and #32 are null and void because they violate

Part 2, Article 83 of the New Hampshire Constitution.

c. Emergency Orders #1, #19, and #32 are null and void because they violate

the requirements of RSA 189:1, RSA 189:24, ED 306.18(a)(2), and the

33

original version of ED 306.18(a)(7) (because the Department’s emergency

amendment to this rule and proposed change to it should be declared void,

as described above).

d. Any further executive or emergency orders issued in response to the

Coronavirus issued after the date of any order issued in this proceeding

attempting to declare another “state of emergency,” renew a declaration of

a “state of emergency,” or close New Hampshire schools and/or

implement remote instruction are void ab initio.

COUNT III (Violation of Right to Education, Part 2, Art. 83, N.H. Const.)

(Plaintiffs v. All Defendants)



101. The New Hampshire Constitution provides every citizen with a fundamental right

to an education. Part 2, Art. 83, N.H. Const.

102. Emergency Orders #1, #19, and #32, the Department’s “emergency” amendment

to ED 306.18(a)(7) collectively directed all school districts, including the Salem school district,

to implement remote instruction for the rest of the 2019-2020 school year. This environment of

remote instruction, including Salem’s adoption of it, has prevented R.W.D. from obtaining even

a basic education because it provides R.W.D. with only two to three hours of instruction and

work every day; it prevents R.W.D. from having the guidance and instruction from teachers and

counselors in a normal, physical school environment; and it prevents R.W.D. from participating

in any sports or extracurricular activities.

103. As a result of these actions, Plaintiffs have suffered damages.

34

COUNT IV (Injunctive Relief)

(Plaintiffs v. All Defendants)



105. Plaintiffs will likely succeed on the merits because (a) the Department’s

“emergency” amendment to ED 306.18(a)(7) is null and void because the Department’s adoption

of it failed to follow the rulemaking procedures set forth in RSA 541-A; (b) the Department’s

proposed change to ED 306.18(a)(7) is null and void because the Department has failed to follow

the rulemaking procedures set forth in RSA 541-A; (c) Executive Orders 2020-08 and 2020-09

and Emergency Orders #1, #19, and #32 are null and void because they were not valid exercises

of Governor Sununu’s authority under RSA 4:45 and 4:47; (d) Emergency Orders #1, #19, and

#32 are null and void because they violate Part 2, Article 83 of the New Hampshire Constitution

and the requirements of RSA 189:1, RSA 189:24, ED 306.18(a)(2), and the original version of

ED 306.18(a)(7) (because the Department’s emergency amendment to this rule and proposed

change to it should be declared void, as described above); and (e) Salem’s implementation of

remote instruction for the remainder of the 2019-2020 school year, and going forward, violates

Part 2, Article 83 of the New Hampshire Constitution and the requirements of RSA 189:1, RSA

189:24, ED 306.18(a)(2), and the original version of ED 306.18(a)(7) (because the Department’s

emergency amendment to this rule and proposed change to it should be declared void, as

described above).

106. As a result of these orders, which have effectively canceled the rest of the school

year and provided Plaintiffs with just a fraction of the instruction that is required to be provided

35

under the applicable authorities above, Plaintiffs will continue to suffer irreparable harm to their

right to an education.

107. Plaintiffs have no adequate remedy at law to redress the harm threatened by the

continuation of these orders.

108. The public interest favors the public’s fundamental right to an education.

109. Plaintiffs are, therefore, entitled to injunctive relief to prevent future harm to their

right to an education.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that the Court:

A. Declare Executive Orders 2020-08 and 2020-09, Emergency Orders #1, #19, and

#32, and the “emergency” version of and proposed change to ED 306.18(a)(7) null and void;

B. Enjoin the enforcement of Executive Orders 2020-08 and 2020-09, Emergency

Orders #1, #19, and #32, the “emergency” version of ED 306.18(a)(7), and the proposed change

to ED 306.18(a)(7) (if adopted);

C. Enter judgment in favor of Plaintiffs on all counts;

D. Award Plaintiffs their damages, which are within the jurisdictional limits of this

Court;

E. Award Plaintiffs their attorney’s fees and costs; and

F. Award such other relief as is just and equitable.

36

REQUEST FOR JURY TRIAL

Plaintiffs request a trial by jury on all claims so triable.

Respectfully submitted,

SHAWN DEVINE, individually and on behalf of R.W.D., his child,

By Their Attorneys,

FOJO LAW, P.L.L.C.

Dated: May 20, 2020 /s/Robert M. Fojo

Robert M. Fojo, Esq. (#19792) 264 South River Road, Suite 464 Bedford, NH 03110 (603) 473-4694 [email protected]

mailto:[email protected]

37

VERIFICATION

I, Shawn Devine, certify that the foregoing facts are true and correct to the best of my

knowledge and belief.

Shawn Devine

STATE OF NEW HAMPSHIRE

COUNTY OF ___________

The foregoing instrument was acknowledged before me this _____ day of May, 2020, by

Shawn Devine.

(Seal) Signature of Notary Public Print, Type/Stamp Name of Notary

Personally known: _________ OR Produced Identification: _________ Type of Identification Produced: _________

Virginia

Loudoun

20TH

NH Driver's License

Notarized online using audio-video communication

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTII CAROLINA

EASTERN DMSION No. 4:20-CV-81-D

BEREAN BAPTIST CIIlJRCH, ) RETURN AMERICA, INC., ) DR. RONNIE BAITY, and ) PEOPLE'S BAPTIST CIIlJRCH, INC., )

) Plaintiffs, )

) v. )

) _ GOVERNOR ROY A. COOPER, ill, )

in his official capacity, ) )

Defendant. )

ORDER

On May 14, 2020, Berean Baptist Church ("Berean"), Return America, Inc. ("Return

America"), Dr. Ronnie Baity ("Dr. Baity"), and People's Baptist Church, Inc. ("People's";

collectively, ''plaintiffs") filed a verified complaint seeking injunctive relief for the violation of their

First Amendment rights [D.E. 1] and requested an emergency temporary restraining order [D.E. 2].

Specifically, plaintiffs contend that Governor Roy Cooper's ("Governor Cooper" or ''the Governor'')

Executive Order 138 concerning COVID-19 and a general requirement that all worship services

involving more than 10 people must be held "outdoors unless impossible" to hold outdoors violates

the Free Exercise Clause of the First Amendment. [D.E. 1-6] 11 ( emphasis added). As part of their

challenge, plaintiffs note that Governor Cooper's Director of Legislative Affairs issued "Guidance

for Religious Services and Mass Gathering Restrictions." That Guidance stated:

In situations where it is not possible to conduct worship services outdoors or through other accommodations--such as through, for example a series of indoor services of ten or fewer attendees or through on-line services-the ten-person attendance Hmit on indoor worship services does not apply. For example, there may be situations

Case 4:20-cv-00081-D Document 18 Filed 05/16/20 Page 1 of 22

where particular religious beliefs dictate that some or all of a religious service must be held indoors and that more than ten persons must be in attendance.

[D.E. 1-7] 3--4 (emphasis added). They also note that Governor Cooper's Executive Order 138

permits countless non-religious gatherings to take place inside without limiting such gatherings to

10 people and without requiring those attending such gatherings to, in essence, be prepared to prove

under penalty of criminal prosecution that it "is impossible" to gather outside. Essentially, plaintiffs

contend that the asE!embly for religious worship provisions in Governor Cooper's Executive Order

138 violate the Free Exercise Clause of the First Amendment by not treating religious entities and

individuals equally when compared to countless non-religious entities and individuals.

On May 15, 2020, the court held a hearing. Solicitor General Ryan Park appeared on behalf

of Governor Cooper and submitted a declaration from Dr. Elizabeth Tilson, the Chief Medical

Officer for the North Carolina Department of Health and Human Services. See [D.E. 17].

There is no pandemic exception to the Constitution of the United States or the Free Exercise

Clause of the First Amendment. Plaintiffs have demonstrated that they are likely to succeed on the

merits of their Free Exercise claim concerning the assembly for religious worship provisions in

Executive Order 138, that they will suffer irreparable harm absent a temporary restraining order, that

the equities tip in their favor, and that a temporary restraining order is in the public interest. Thus,

having considered the entire record and governing law, the court grants plaintiffs' motion for a

temporary restraining order.

I.

A.

For purposes of this temporary restraining order only, the court draws the facts largely from

plaintiffs' verified complaint. On March 10, 2020, the Governor responded to COVID-19 with

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Executive Order No. 116 ("EO 116") by declaring a State of Emergency for North Carolina and

thereafter issuing a series of executive orders attempting to prevent the spread of COVID-19 within

North Carolina. Roy Cooper, in his official capacity as Governor of the State ofNorth Carolina, is

responsible for enacting and enforcing the COVID-19 executive orders at issue in this case and is

sued in his official capacity only.

In their complaint, plaintiffs challenge the Governor's Executive Order Nos. 117, 120, 121,

135, and 138 issued March 14, March 27, March 23, April 23, and May 5, 2020, respectively (''EO

117," "EO 120," "EO 121," "EO 135," "EO 138," and collectively "Orders"), as being

unconstitutional both facially and as applied to plaintiffs, because the orders treat religious

gatherings less favorably than similar non-religious gatherings. According to plaintiffs, the Orders

virtually ban religious assembly, are not narrowly tailored, and do not permit less restrictive means

to achieve the government's interest without burdening plaintiffs' First Amendment rights. See

[D.E. 1-2, 1-3, 1-4, 1-5, 1-6]. According to plaintiffs, the Orders are not neutral laws of general

applicability because they target constitutionally protected activity, significantly burden plaintiffs'

right to freedom of religion and assembly, and establish an orthodox form of religious exercise

approved by the State, all the while providing broad exemptions for many other non-religious

gatherings of more than 10 people.

Plaintiff Berean is a non-profit church incorporated under the laws of North Carolina and

organized exclusively for religious purposes under section 501( c )(3) of the Internal Revenue Code.

Berean is located in Winston Salem, North Carolina.

Plaintiff Return America is a non-profit corporation incorporated under the laws of North

Carolina and organized for religious and educational purposes within the meaning of section

50l(c)(3) of the Internal Revenue Code. Return America is located in Winston Salem, North

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Carolina.

Berean has been operating in Winston-Salem, North Carolina, since November 1980.

Multiple times every week, for almost 40 years, Berean has assembled its members and attendees

in its church buildings in gatherings of more than 10 people to engage in religious worship as a body.

It has been unable to do so since the Governor issued his Orders.

Dr. Baity is the founder and Pastor of Berean, the President of Return America, and serves

as a chaplain for the Winston-Salem Police Department. Berean and its members, including Dr.

Baity, who together make up Berean, believe that a physical assembly in one place on Sunday, for cl

mid-week services, in revivals, and for other special meetings is a God-commanded part of their

worship and that the failure to assemble violates their religious faith. Church attendance is of such

ecclesiastical importance to Berean that under the Berean' s bylaws, the failure of a member to attend

at least one regular worship service in two months subjects that member's membership to automatic

termination by Berean.

Return America is a non-profit organization that consists of a network of churches and

individuals whose purpose it is to educate, motivate, and mobilize citizens in a united effort to

promote Judeo-Christian values. Return America regularly conducts rallies, conferences, and other

gatherings with more than 10 people. Return America has been prohibited from doing since the

Governor issued his Orders. Return America has over 130 supporting North Carolina churches and

several hundred individuals within its network, with some 12,000 individuals attending Return

America rallies.

People's is a non-profit church incorporated under the laws ofNorth Carolina and organized

exclusively for religious purposes under section 501(c)(3) of the Internal Revenue Code. People's

is located in Greenville, North Carolina. People's has been operating in Greenville, North Carolina

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for 58 years. Multiple times every week over those 58 years, People's has assembled its members

and attendees in its church buildings in gatherings of more than 10 people to engage in religious

worship as a body. It has been unable to do so since the Govern.or issued his Orders. People's and

its members believe that a physical assembly in one place on Sunday, for mid-week services, in

revivals, and for other special meetings· is a God-commanded part of their worship and that the

failure to assemble violates their religious faith. Church attendance is of ecclesiastical importance

to People's. Under the People's bylaws, a qualification for membership is being engaged in regular

church attendance. If a member fails to attend for six months, the member may automatically be

placed on the inactive list.

According to plaintiffs, they have peaceably complied with the Orders that have limited their

religious worship gatherings to 10 people or forced them to hold much less acceptable electronic

meetings. They have done so in furtherance of their strong interest in protecting their congregants,

respect for and obedience to authority, and assurances from the Governor that the restrictive

measures imposed by.the Orders would be very temporary. Plaintiffs now challenge the Orders due

to the

disparate, unequal, discriminatory, unfavored, hostile, and most restrictive treatment of Plaintiffs' religious and other First Amendment gatherings over other, secular, gatherings; their congregants need comfort from their church after they have been forced to remain in their homes for weeks and weeks; the ever.;lengthening infringement by the Orders upon their God-commanded duty to corporately assemble for worship in their houses of worship; and their concern over the State's interference in the very form and method of their most important of their ecclesiastical functions--religious worship.

Compl. [D.E. 1] ,r 30.

B.

On March 10, 2020, the Governor issued EO 116, declaring a State of Emergency, as defined

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inN.C. Gen. Stat.§§ 166A-19.3(6)and 166A-19.3(19)forNorthCarolinabasedonthepublichealth

emergency posed by COVID-19. See [D.E. 1-1] 3. North Carolina remains under the State of

Emergency. See [D.E. 1-6] 1-4.

On March 14, 2020, the Governor issued EO 117 prohibiting for 30 days "mass gatherings"

of "more than 100 people in a single room or single space at the same time, such as an auditorium,

stadium, arena, large conference room, meeting hall, theater, or any other confined indoor or outdoor

space." [D.E. 1-2] 3. EO 117 exempted from the mass gathering prohibition numerous categories

of gatherings, including ''normal operations at airports, bus and train stations, medical facilities,

libraries, shopping malls and centers, or other spaces where more than one hundred (100) persons

are gathered. It also does not include office environments, restaurants, factories, grocery stores or

other retail establishments." Id. EO 117 authorized criminal prosecution of violations of EO 117

as Class 2 misdemeanors. See id

The Governor issued EO 120 on March 23, 2020, to be in effect for 30 days. EO 120 reduced

the maximum number to SO persons who could lawfully gather in a mass gathering and again

excluded from the definition of mass gathering ''normal operations at airports, bus and train stations,

medical facilities, libraries, shopping malls and centers," as well as "office environments, factories,

grocery stores, and child care facilities." [D.E. 1-3] 4. EO 120 also closed entertainment facilities

and personal care and grooming facilities, and again authorized the crimjnaJ prosecution of

violations. Id.

The Governor issued EO 121 on March 27, 2020, and ordered all individuals in North

Carolina to stay at home and practice social distancing as much as reasonably possible, and permitted

individuals to leave their homes "only for Essential Activities, Essential Governmental operations,

or to participate in or access COVID-19 Essential Business and Operations" as defined in EO 121.

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[D.E. 1-4] 4. Section 2 ofEO 121 listed 30 "COVID-19 Essential Businesses and Operations." Id.

at 5-9. The first category of EO 121 's list of COVID-19 Essential Business or Operation was

"Businesses that meet Social Distancing Requirements," which had no limit placed on the number

of employees and customers allowed to gather except at the point of sale or purchase. Id at 5--6.

The Governor also included as an essential business or operation:

10. Religious entities. Religious facilities, entities, groups, gatherings, including funerals. Also, services, counseling, pastoral care, and other activities provided by religious organizations to the members of their faith community. All of these functions are subject to the limitations on events or convenings in Section 3 of this Executive Order.

Id. at 7 ( emphasis added). The Governor included "Religious entities"as one of only two categories

of the 30 Essential Businesses and Operations that were subject to EO 121 's Section 3 requirements.

Id. The other one was "Funeral Services." Id. at 9.

Section 3 ofEO 121 rescinded the definitions from earlier Orders that had defined ''mass

gatherings" as more than 100 people and then more than SO people. It defined ''mass gathering'' as

"any event or convening that brings together more than ten (10) persons in a single room or single

space at the same time." Id. at 10. It excluded from the IO-person limit ''normal operations at

airports, bus and train stations, medical facilities, libraries, shopping malls and centers" or any

"COVID-19 Essential Business or Operation." Id Section 3 capped funeral services at SO people,

and religious gatherings at 10 people. See id. at 9-10.

On April 23, 2020, the Governor issued EO 135, extending the mass gathering prohibition

ofEO 120 and all of EO 121 until May 8, 2020. See [D.E. 1-5] 3-4.

On May S, 2020, the Governor issued EO 138 in which he began lifting the stay at home

order by permitting individuals to leave their homes b~ginning May 8, 2020, only for "Allowable

Activities" as the Governor defined. [D.E. 1-6] 4. Otherwise, the Governor ordered individuals to

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continue to stay at home. See id at S. EO 138's allowable activities include "[t]o worship or

exercise First Amendment rights." Id. at 6.

EO 138's definition of ''mass gathering" now excludes "gatherings for ... worship, or

exercise of First Amendment rights," which would appear to exclude gathering for worship from

the 10-person limit in "any other confined indoor or outdoor space" required of a ''mass gathering."

Id. at 12. However, EO 138 then requires gatherings with more than 10 people to ''take place

outdoors unless impossible." Id. (emphasis added).

InEO 138, the Govern.or still considers :funeral services a ''mass gathering," but the Governor

permits up to SO people to gather for a :funeral service. Id. In EO 138, the Govern.or also excluded

from the definition of ''mass gathering'' events in which ''the participants all stay within their cars,

such as at a drive-in movie theater." Id.

On May 11, 2020, Lee Lilley, the Director of Legislative Affairs for the Office of Governor

Cooper, notified North Carolina Senators that the Govern.or's office "has issued guidance to assist

congregants and public officials regarding'' "how religious worship services may be safely

convened." [D.E. 1-7] 2 (Letter from the Office of the Govern.or to Senators with attached "EO 138

Phase One -- Guidance for Religious Services and Mass Gathering Restrictions" ("Guidance'')).

According to the Guidance, EO 138 applies to religious services. See id at 3-4. In addition,

"[i]ndoor worship services and weddings are allowed for gatherings of ten people or fewer in the

same confined space." Id. at 4. The Guidance also interprets EO 13 8 to mean that, as a general rule,

religious entities may only assemble with more than 10 people if they meet outdoors. Id. The

Guidance then states that the 10-person indoor attendance limit does not apply if it is ''not possible"

to meet outdoors. Id. The Guidance then gives an example of impossibility to include when

"particular religious beliefs dictate that some or all of a religious service must be held indoors and

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that more than ten persons must be in attendance." Id.

According to plaintiffs, EO 138 has made the right to gather inside for religious worship

dependent upon the religious beliefs of the gathering participant, not upon the participant's age,

health, or background. Thus, according to plaintiffs, under pain of criminal prosecution, if the

participant does not hold the State's established religious belief or is not prepared to prove

"impossibility," the participant must gather for worship outside when worshiping with more than 10

people. Compl. at ,r 52.

Plaintiffs assert three claims. In count one, plaintiffs contend that the Orders, on their face

or as applied, violate their Free Exercise rights under the First and Fourteenth Amendments. See id.

ft 56--61. In count two, plaintiffs contend that the Orders, on their face or as applied, violate the

Establishment Clause under the First andFourteenthAmendments. See id. ft 63--65. In count three,

plaintiffs contend that the Orders, on their face or as applied, violate their right to assemble under

the First and Fourteenth Amendments. See id. ft 66--70. Plaintiffs seek declaratory and injunctive

relief.

II.

The court has considered plaintiffs' request for a temporary restraining order under the

governing standard. See.~ Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Centro

Tq,eyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en bane); Real Truth About

Ohama, Inc. v. FEC, 575 F.3d 342,346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089

(2010), reissued in relevant nm, 607 F.3d 355 (4th Cir. 2010) (per curiam); U.S. Dq,'tofLaborv.

Wolf Run Mining Co., 452 F.3d 275,281 n.1 (4th Cir. 2006) (substantive standard for temporary

restraining order is same as that for entering a preliminary injunction). Plaintiffs have established

that (1) they are likely to succeed on the merits of their claim that the assembly for religious worship

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provisions in EO 138 violate their rights under the Free Exercise Clause of the First Amendment;

(2) they are likely to suffer irreparable harm absent a temporary restraining order; (3) the balance of

the equities tips in their favor; and (4) a temporary restraining order is in the public interest.

ill.

A.

Plaintiffs have demonstrated a likelihood of success on their claim that the assembly for

religious worship provisions in EO 138 and the Guidance violate their rights under the Free Exercise

Clause of the First Amendment. The First Amendment provides that "Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend.

I. "[A] law that is neutral and of general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect of burdening a particular religious

practice." ChurchoftheLukumiBabaluAye,Inc. v. Cicy:ofHialealL 508 U.S. 520,531 (1993); see

Trinicy: Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017); Emp't Div.,

De,pt of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-89 (1990). ''Neutrality and general

applicability are interrelated, and ... failure to satisfy one requirement is a likely indication that the

other has not been satisfied." Lukumi, 508 U.S. at 531. If a law is not neutral or generally

applicable, it ''must be justified by a compelling governmental interest and must be narrowly tailored

to advance that interest." Id. at 531-32; see Jesus Christ Is The Answer Ministries, Inc. v. Baltimore

~ 915 F.3d 256, 265--66 (4th Cir. 2019); Am. Life League, Inc. v. Reno, 47 F.3d 642, 654 (4th

Cir. 1995).

No constitutional right-including the right of free exercise of religion-is absolute. See

Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) ("But the liberty secured by the Constitution of

the United States to every person within its jurisdiction does not import an absolute right in each

10


person to be, at all times and in all circumstances, wholly freed from restraint."). Individual liberties,

"under the pressure of great dangers," may be reasonably restricted "as the safety of the general

public may demand." Id. a~ 29. A court may review those restrictions if they have ''no real or

substantial relation to those objects, or [are], beyond all question, a plain, palpable invasion of rights

secured by the fundamental law." Id. at 31. Although 115 years old, Jacobson remains the lodestar

in striking the balance between constitutional rights and public safety. See In re Abbott, 954 F.3d -,

772, 783 (5th Cir. 2020); Roberts v. Neace,-F.3d-, No. 20-5465, 2020 WL2316679, at *4 (6th

Cir. May 9, 2020); Maryville Baptist Church, Inc. v. Beshear, -F.3d-, 2020 WL 2111316, at *4

(6th Cir. May 2, 2020); see also Kansas v. Hendricks, 521 U.S. 346, 356-57 (1997).

Section 6(A) of EO 138 provides:

Section 6. Mass Gatherings Prohibited.

A. Prohibition. Mass Gatherings are prohibited. "'Mass Gathering" means an event or convening that brings together more than ten (10) persons at the same time in a single space, such as an auditorium, stadium, arena, conference room, meeting hall, or any other confined indoor or outdoor space. This includes parades, fairs, and festivals.

Mass Gatherings do not include gatherings for health and safety, to look for and obtain goods and services, for work, for worship, or exercise of First Amendment rights, or for receiving governmental services. A Mass Gathering does not include normal operations at airports, bus and train stations or stops, medical facilities, shopping malls, and shopping centers. However, in these settings, people must follow the Recommendations to Promote Social Distancing and Reduce Transmission as much as possible, and they should circulate within the space so that there is no sustained contact between people.

[D.E. 1-6] 12. -So far so good. If you read just this paragraph it appears that the definition of ''Mass

Gatherings" does not include gatherings ''for worship, or exercise of First Amendment rights." Id.

Thus, it appears plaintiffs can.meet and worship with as many members as they want whether inside

or outside.

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Not so. Upon close inspection, the protections in section 6(A) are nominal at best. See

Lukumi, 508 U.S. at 534 ("Facial neutrality is not determinative."). Indeed, the assembly for

religious worship provisions in BO 13 8 represent precisely the sort of "subtle departures from

neutrality'' that the Free Exercise Clause is designed to prevent. Gillette v. United States, 401 U.S.

437,452 (1971); see Luk:umi, 508 U.S. at 534. At oral argument, the court asked the Govern.or's

counsel ifEO 13 8 ''means that any religious entity can hold an indoor service at any time of any size

if it wants to, so long as it follows social distancing?" The Govern.or's counsel answered, ''No." The

Govern.or's counsel then discussed section 6(C) in BO 138.

Section 6(C) states: "Because the risk of COVID-19 spread is much greater in an indoor

setting, any gatherings of more than ten (10) people that are allowed under Subsection 6(A) shall

take place outdoors unless impossible." [D.E. 1-6] 12 ( emphasis added). The court 1;hen asked, who

decides whether it is "impossible" to worship outside under section 6(C). The Govern.or's counsel

conceded that it would be a sheriff or other local law enforcement officer who would decide whether

the religious entity or individual was correct in deciding whether it was "impossible" to worship

outside.

That's a remarkable answer in light of the Free Exercise Clause. See Masterpiece Cakeshop,

LLC v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719, 1723-32 (2018); Sherbert v. Vern.er, 374

U.S. 398,401-410 (1963),abrogatedinpartby:Smith,494 U.S. at882-83; Cantwell v. Connecticut,

310 U.S. 296, 305-311 (1940). A leader of a religious entity or a worshiper, under pain of criminal

prosecution for a Class 2 misdemeanor, has to answer to a sheriff or other local law enforcement

officer whether it is ''impossible" to worship outside. Who could answer that question, "Yes. It is

impossible."? After all, in the overwhelming majority of cases, members of a religious entity would

have gathered to worship from somewhere else. Upon arrival at the worship site, all would be

12


outside for at least a few moments, whether they traveled by public transportation, by automobile,

by bus, or by foot. Sure, it might be hot, cold, rainy, or buggy, but when would it be "impossible"

to worship outside? EO 138 does not answer the question, but the Govern.or's "Guidance" does.

And that answer is even less satisfying.

In the Guidance, the Governor's Director of Legislative Affairs gave an example of what

would qualify to permit a religious organization or group of worshipers to have more than 10 people

inside to worship. See [D.E. 1-7] 4. The Guidance states: "For example, there may be situations

in which particular religious beliefs dictate that some or all of a religious service must be held

indoors ~d that more than ten persons must be in attendance." Id. ( emphasis added).

Again, the question becomes: who decides whether a religious organization or group of

worshipers correctly determined that their religious beliefs dictated the need to have more than 10

people inside to worship? Under EO 138, the answer is a sheriff or another local law enforcement

official. This court has grave concerns about how that answer comports with the Free Exercise

Clause. See Masterpiece Cakeshop, LLC, 138 S. Ct. at 1723-32; Sherb~ 374 U.S. at 401-10;

Cantwell, 310 U.S. at 305-11.

At the hearing, we also discussed what the "impossibility'' provision in section 6(C) meant

for the myriad non-religious entities referenced in EO 138. The Governor's counsel opined that

because it would be "impossible" to move the produce out of a grocery store, grocery stores and

those who shop there are not subject to the ''no-more-than-10-inside-unless-impossible" requirement

in section 6(C). Presumably, that answer would be the same for those who operate or gather and

wait at an airport, bus, or train terminal, a medical facility, a shopping mall, a shopping center, Wal

Mart, Lowes, and countless other businesses of all kinds. If a person or entity is buying or selling

goods or services, the Governor understands EO 138 to mean it is "impossible" to move such goods

13


or services outside. Thus, the ''no-more-than-10-inside-unless-impossible" requirement in section

6(C) does not apply to vast swaths of individuals and businesses. Rather, all such individuals and

businesses must do to comply with section 6(A) of EO 138 is to ensure that people ''follow the

Recommendations to Promote Social Distancing and Reduce Transmissions as much as possible,

and they circulate within the space so that there is no sustained contact between people." [D.E. 1-6]

12.

Not so for religious entities or worshipers. As the Governor's counsel made clear at the

hearing, and as the Guidance makes even more clear, a sheriff or other law enforcement official has

the power to decide whether a religious person or entity has met the ''no-more-than-10-inside-unless

impossible" requirement in section 6(C). If the answer is wrong, the religious person or entity faces

prosecution for a Class 2 misdemeanor. Id. at 15.

These glaring inconsistencies between the treatment of religious entities and individuals and

non-religious entities and individuals take EO 138 outside the "safe harbor for generally applicable

laws." Roberts, 2020 WL 2316679, at *3. But wait, there's more inconsistency.

In section 6(0), the Governor discusses "Funerals." [D.E. 1-6] 12. Section 6(0) states:

''Notwithstanding the above, and in an effort to promote human dignity and limit suffering, Mass

Gatherings at funerals are permitted for up to fifty (50) people. People meeting at a funeral should

observe the Recommendations to Provide Social Distancing and Reduce Transmission to the extent

possible." Id.

At oral argument, the Governor's counsel conceded that there is no public health rationale

for allowing 50 people to gather inside at a funeral, but to limit an indoor religious worship service

to no more than 10 people. Some funerals are religious. Some funerals are not religious. The

Governor's counsel could not explain why the Governor trusts those who run funerals to have 50

14


people inside to attend the funeral, but only trusts religious entities and individuals to have 10 people

inside to worship.

Plaintiffs have demonstrated that they are likely to succeed on the merits because the

~sembly for religious worship provisions in BO 138 and the Guidance place a burden on the

pla.iptiffs' free exercise of religion. See,~ Roberts, 2020 WL2316679, at *2-5. Plaintiffs ''just

want to be treated equally." Id. at *3. "They don't seek to insulate themselves from [North

Carolina's] general public health guidelines." Id. "They simply wish to incorporate them into their

worship services" indoors. Id. "They are willing to follow any hygiene requirements." Id. ''The

Governor has offered no good reason for refusing to trust the congregants who promise to use care

in worship in just the same way he trusts accountants, lawyers, and laundromat workers to do the

same." Id. "How can the same person be trusted to comply with social-distancing and other health

guidelines in secular settings but not be trusted to do the same in religious settings?" Id. Eleven

men and women can stand side by side working indoors Monday through Friday at a hospital, at a

plant, or at a package distribution center and be trusted to follow social distancing and hygiene

guidance, but those same eleven men and women cannot be trusted to do the same when they

worship inside together on Saturday or Sunday. "The distinction defies explanation, or at least the

Governor has not provided one." Id.

This court does not doubt that the Governor is acting in good faith to lessen the spread of

COVID-19 and to protect North Carolinians. "But restrictions inexplicably applied to one group and

exempted from another do little to further these goals and do much to burden religious freedom."

Id. at *4. Moreover, it does not ''make a difference that faith-based bigotry did not motivate" BO

138. Id The Constitution makes the bar higher than that ''The constitutional benchmark is

governmental neutrality. not governmental avoidance of bigotry." Id. (emphasis added). "A law is

15


not neutral and generally applicable unless there is neutrality between religion and non-religion."

Id. ( quotation omitted). "And a law can reveal a lack of neutrality by protecting secular activities

more than comparable religious ones." Id. Importantly, "[ a]ll laws are selective to some extent, but

categories of selection are of paramount concern when a law has the incidental effect of burdening

religious practice. The Free Exercise Clause protects religious observers against unequal treatment"

Lukumi, S08 U.S. at S42 (quotation and alteration omitted).

The assembly for religious worship provisions inEO 138 starkly illustrate the extent to which

religious entities and individuals are not subject to a neutral or generally applicable law. The record,

at this admittedly early stage of the case, reveals that the Govern.or appears to trust citizens to

perform non-religious activities indoors (such as shopping or working or selling merchandise) but

does not trust them to do the same when they worship indoors together. Cf. id. at S43. "The

principle that government, in pursuit of legitimate interests, cannot in a selective manner impose

burdens only on conduct motivated by religious belief is essential to the protection of the rights

guaranteed by the Free Exercise Clause." Id Notably, 1 S other Govern.ors trusted the people of their

states and exempted religious gatherings from any attendance limitations during this pandemic.1 The

Govern.or has failed to cite any peer-reviewed study showing that religious interactions in those 1 S

states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious

interactions. Likewise, common sense suggests that religious leaders and worshipers (whether inside

or outside North Carolina) have every incentive to behave safely and responsibly whether working

1 These fifteen states are Pennsylvania, West Virginia, Ohio, Michigan, North Dakota, South Dakota, Utah, Colorado, Arizona, Texas, Arkansas, Tennessee, South Carolina, Georgia, and Florida. See [D.E. 3] 12 n.2; Virginia Villa, Most States Have Religious Exemptions to COVID-19 Social Distancing Rules, Pew Research Center (April 27, 2020), https://www.pewresearch.org/fact-tank/2020/04/27/most-states-have-religious-exemptions-to-co vid-19-social-distancing-rules/

16


indoors, shopping indoors, or worshiping indoors. The Governor cannot treat religious worship as

a world apart from non-religious activities with no good, or more importantly, constitutional,

explanation. Accordingly, as in Roberts, the assembly for religious worship provisions in BO 138

must satisfy strict scrutiny and narrow tailoring. See Roberts, 2020 WL 2316679, at *4.

As for strict scrutiny and narrow tailoring, no one contests that the assembly for religious

worship provisions in BO 138 "burden sincere faith practice." Id. Similarly, no one contests the

Governor's compelling interest in seeking to prevent the spread of COVID-19. Thus, the question

becomes whether the assembly for religious worship provisions in BO 138 amount to the "least

restrictive means" of serving that compelling interest. Id. They do not Plaintiffs have pledged to

adhere to "all recommended COVID-19 social distancing and personal hygiene safety guidelines" .

in exercising their free exercise rights. [D.B. 3] 3. They simply want the Governor to afford them

the same treatment as they and their fellow non-religious citizens receive when they work at a plant,

clean an office, ride a bus, shop at a store, or mourn someone they love at a funeral. See Lukumi,

508 U.S. at 546 ("The proffered objectives are not pursued with respect to analogous non-religious

conduct, and those interests could be achieved by narrower ordinances that burdened religion to a

far lesser degree."); Roberts, 2020 WL 2316679, at *3-4.

The court recognizes that under Jacobson, the state has significant power to legislate in the

public interest during public health emergencies. See Jacobson, 197 U.S. at 29--30. The court

acknowledges that the Governor's interest in protecting the public during a public health emergency

is both compelling and sincere. The court also understands that "[t]he right to practice religion freely

does not include ,liberty to expose the community ... to communicable disease or the latter to ill

health or death." Prince v. Massachusetts, 321 U.S. 158, 166--67 (1944). Moreover, it is not the

ambit of the judiciary to ''usurp the functions of another branch of government." Jacobson, 197 U.S.

17


at 28. Nevertheless, in Jacobson, the Court recognized that such a power is not absolute and that "an

acknowledged power of a local community to protecti~elf againstanepidemic threatening the safety

of all might be exercised ... in such an arbitrary, unreasonable manner, or might go so far beyond

what was reasonably required for the safety of the public, as to authorize or compel the courts to

interfere for the protection of such persons." Id. In this case, the assembly for religious worship

provisions in EO 138 do just that. And, as the Sixth Circuit recently noted, "[w]hile the law may

take periodic naps during a pandemic, we will not let it sleep through one." Roberts, 2020 WL

2316679, at *4.

In effect, the assembly for religious worship provisions in EO 138 place worshipers between

Scylla and Charybdis, forcing them to choose between obeying their faith or risking criminal

prosecution for a Class 2 misdemeanor. See EO 138 [D.E. 1-6] 15; N.C. Gen. Stat.§§ 166A-

19 .19 .30( d), 14-288.20A; Braunfeld v. Bromi, 366 U.S. 599, 605 (1961 ). The Free Exercise Clause

~

of the United States Constitution affords them protection from that choice. The assembly for

religious worship provisions in EO 138 are not narrowly tailored to accomplish the compelling

interest in protecting public health. Accordingly, plaintiffs have demonstrated they are likely to

succeed on the merits of their Free Exercise Claim. See, e.g .• Roberts, 2020 WL 2316679, at *4-5.2

B.

Plaintiffs have demonstrated they would suffer an irreparable injury if the assembly for

religious worship provisions in EO 138 are enforced. ''The loss of First Amendment freed9ms, for

evenmjnjma1 periods of time, unquestionably constitutes irreparable injury." Elrod v. Bums, 427

U.S. 347, 373 (1976); see Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978) (''Violations of

2 At this stage of the case, the court declines to address plaintiffs' Establishment Clause claim or their Freedom of Assembly claim.

18


first amendment rights constitute per se irreparable injury."). Moreover, that EO 138 may expire on

Friday, May 22, 2020 at 5 PM, offers no comfort to plaintiffs. See [D.E. 1-7] 15. With each passing

day, the harm from depriving plaintiffs of their free exercise rights only increases. Accordingly,

enforcing the assembly for religious worship provisions in EO 138 constitutes irreparable injury.

See, e.g., Stuart Circle Parish v. Bd. of Zoning Appeals of City of Richmond, 946 F. Supp. 1225,

1235 (E.D. Va. 1996).

The court also must balance the equities before granting a temporary restraining order. Here,

the temporary restraining order concerns a portion of an executive order of the Govern.or, and

necessarily implicates the public interest. The public has a compelling interest in preventing the

spread of COVID-19. Lives are at risk, particularly among the elderly and those with pre-existing

conditions such as obesity, diabetes, hypertension, and lung disease. But the instinct for self-survival

is strong. The court trusts worshipers and their leaders to look after one another and society while

exercising their free exercise rights just as they and their fellow citizens (whether religious or not)

do when engaged in non-religious activities. Plaintiffs have pledged to practice social distancing and

other public health guidelines, just like others under EO 13 8. Accordingly, the equities tip in favor

of granting a temporary restraining order.

As for the public interest, it favors a temporary restraining order. After all, "[t]reatment of

similarly situated entities in comparable ways serves public health interests at the same time it

preserves a bedrock free-exercise guarantee." Roberts, 2020 WL 2316679, at • 5.

C.

As for the scope of the temporary restraining order, district courts have ''broad discretion

when fashioning injunctive relief:" subject to certain limits. Ostergren v. Cuccinelli, 615 F.3d 263,

288 (4th Cir. 2010). "Once a constitutional violation is found, a federal court is required to tailor

19


the scope of the remedy to fit the nature and extent of the constitutional violation." Dayton Bd. of

Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quotation omitted); see Ostergren, 615 F.3d at

288-89. Accordingly, the scope of the injunction is not dictated ''by the geographical extent of the

plaintiff class." Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Rather, the injunction must be

"carefully addressed to the circumstances of the case." Va. Soc'y for Human Life v. FEC, 263 F.3d

379, 393 (4th Cir. 2001), overruled on other grounds by The Real Truth About Abortion, Inc. v.

F.E.C., 681 F.3d544 (4th Cir. 2012); seePBMProds., LLC v. Mead Johnson& Co., 639 F.3d 111,

128 (4th Cir. 2011); Hayes v. N. State Law Enf't Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993).

Additionally, "injunctive relief should be no more burdensome to the defendant than necessary to

provide complete relief to the plaintiffs." Califano, 442 U.S. at 702.

The court exercises its discretion to enjoin enforcement of the assembly for religious worship

provisions in EO 138. See Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, -F. Supp.

3d-, 2020 WL2305307, at *6 (E.D. Ky. May 8, 2020); see also Rodgers v. Bryant, 942 F.3d451,

457--60 (8th Cir. 2019); cf. Home v. Flores, 557 U.S. 433, 4 70-72 (2009). At the hearing, plaintiffs

asked the court to issue a statewide injunction, and the Governor's counsel confirmed that the

assembly for religious worship provisions in EO 138 apply to all who assemble for religious worship

throughout North Carolina. Moreover, the assembly forreligious worship provisions in EO 138, by

their terms, prohibit not just Berean Baptist or People's Baptist from holding indoor worship

activities with more than ten people, but necessarily prohibit all worshipers in North Carolina from

such worship. Stated differently, the scope of the free exercise violation caused by the assembly for

religious worship provisions in EO 138 involves every religious activity in North Carolina where

more than lOpeople gather indoors to worship. See Brinkman, 433 U.S. at420; Ostergren, 615 F.3d

20


at 288-89. Accordingly, the court issues a statewide injunction.3

IV.

In s~ the court GRANTS plaintiffs' emergency motion for a temporary restraining order

[D.E. 2]. Defendant, any of his agents, employees, and state or local law enforcement officers are

ENJOINED from taking any enforcement action against plaintiffs or any other worshipers pmsuant

to the assembly for religious worship provisions in EO 138. As set forth in section 6(0) ofEO 138,

any person or group of people gathering to worship "should observe the Recommendations to

Promote Social Distancing and Reduce Transmissions to the extent practicable." [D.E. 1-6] 12.

This order shall remain in place for no longer than 14 days. See Fed. R Civ. P. 65(b)(2). No bond

is required.

The court SCHEDULES a hearing on plaintiffs' motion for a preUmimuy injunction on

·Friday, May 29, 2020, at 11 :00 a.~. in courtroom one of the Terry Sanford Federal Building, 310

3 At the hearing, the Governor's counsel mentioned Ex parte Young. 209 U.S. 123 (1908). In Ex parte Young, the Supreme Court held that a party may seek ''prospective, injunctive relief against a state officer to prevent ongoing violations of federal law'' if certain requirements are met. McBurneyv. Cuccinelli, 616F.3d393, 399 (4th.Cir. 2010); seeExparte Young,209U.S. at 159--60. Specifically, a "special relation" must exist between the state officer sued and the regulation at issue, and the officer has either acted or threatened to act pmsuant to the regulation. McBurney, 616 F .3d at 399; see Ex parte Young. 209 U.S. at 155-57; Waste Mgmt. Holdingi:;. Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001). A "special relation" exists if the officer has ''proximizy to and responsibilizy for the challenged state action." S.C. Wildlife Fed'n v. Limehouse, 549 F .3d 324, 333 (4th Cir. 2008) (emphasis in original). In contrast, a state officer's "[g]eneral authority to enforce the laws of the state" is not a "special relation." Gilmore, 252 F.3d at 331; see Limehouse, 549 F.3d at 333.

Obviously, the Governor issued EO 138, and his office issued the "Guidance for Religious Services and Mass Gathering Restrictions." See [D.E. 1-6, 1-7]. The court need not delve further into Ex parte Young at this time. As discussed, plaintiffs _demonstrated that they are likely to succeed on the merits of the Free Exercise claim, and Ex parte Young does nothing to disturb the analysis. Moreover, to the extent that the plaintiffs did not plead the proper defendants under Ex parte Young. plaintiffs promptly may amend their complaint as of right to add defendants. See Fed. R Civ. P. 15. At the appropriate time and with the benefit of briefing and a more fully developed record, the court may again address the issue.

21


New Bern Avenue, Raleigh, North Carolina Plaintiffs' brief in support of their motion for a

preHminary injunction is due on Thursday, May 21, 2020. Defendant's response is due on Tuesday,

May 26, 2020. Plaintiffs' reply is due on Wednesday, May 27, 2020. IfEO 138 expires, the parties

shall promptly notify the court.

SO ORDERED. This .lfoday of May 2020, at 2. ; r S:: p . N · .

~ bviu J S C. DEVER III United States District Judge

22


EXHIBIT B

IN THE SUPREME COURT OF TEXAS

══════════ NO. 20-0340

══════════

IN RE SALON A LA MODE, ET AL.

══════════════════════════════════════════ ON EMERGENCY PETITION FOR WRIT OF MANDAMUS

══════════════════════════════════════════ JUSTICE BLACKLOCK, joined by JUSTICE GUZMAN, JUSTICE BOYD, and JUSTICE DEVINE, concurring in the denial of the petition for writ of mandamus.

“The Constitution is not suspended when the government declares a state of disaster.” In

re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). All government power in

this country, no matter how well-intentioned, derives only from the state and federal constitutions.

Government power cannot be exercised in conflict with these constitutions, even in a pandemic.

In the weeks since American governments began taking emergency measures in response

to the coronavirus, the sovereign people of this country have graciously and peacefully endured a

suspension of their civil liberties without precedent in our nation’s history. In some parts of the

country, churches have been closed by government decree, although Texas is a welcome

exception. Nearly everywhere, the First Amendment “right of the people to peaceably assemble”

has been suspended altogether. U.S. Const. amend. I. In many places, people are forbidden to

leave their homes without a government-approved reason. Tens of millions can no longer earn a

living because the government has declared their employers or their businesses “‘non-essential.’”

Those who object to these restrictions should remember they were imposed by duly elected

officials, vested by statute with broad emergency powers, who must make difficult decisions under

2

difficult circumstances. At the same time, all of us—the judiciary, the other branches of

government, and our fellow citizens—must insist that every action our governments take complies

with the Constitution, especially now. If we tolerate unconstitutional government orders during

an emergency, whether out of expediency or fear, we abandon the Constitution at the moment we

need it most.

Any government that has made the grave decision to suspend the liberties of a free people

during a health emergency should welcome the opportunity to demonstrate—both to its citizens

and to the courts—that its chosen measures are absolutely necessary to combat a threat of

overwhelming severity. The government should also be expected to demonstrate that less

restrictive measures cannot adequately address the threat. Whether it is strict scrutiny or some

other rigorous form of review, courts must identify and apply a legal standard by which to judge

the constitutional validity of the government’s anti-virus actions. When the present crisis began,

perhaps not enough was known about the virus to second-guess the worst-case projections

motivating the lockdowns. As more becomes known about the threat and about the less restrictive,

more targeted ways to respond to it, continued burdens on constitutional liberties may not survive

judicial scrutiny.

Ideally, these debates would play out in the public square, not in courtrooms. No court

should relish being asked to question the judgment of government officials who were elected to

make difficult decisions in times such as these. However, when constitutional rights are at stake,

courts cannot automatically defer to the judgments of other branches of government. When

properly called upon, the judicial branch must not shrink from its duty to require the government’s

anti-virus orders to comply with the Constitution and the law, no matter the circumstances.

3

* * *

This original petition, which challenges several local officials’ coronavirus response

measures, should first be presented to the appropriate district courts. The Supreme Court is

generally a court of last resort. Our original jurisdiction to issue the requested relief is doubtful,

and the petition is presented without supporting affidavits and with no record on which the Court

could base its inquiry. Just as other government officials must not exceed their rightful power in

extraordinary circumstances, this Court also must not do so. I therefore concur in the denial of the

petition.

__________________________________ James D. Blacklock Justice

OPINION DELIVERED: May 5, 2020

Documents

STATE OF NEW HAMPSHIRE ROCKINGHAM COUNTY …...8. Plaintiff Shawn Devine is an individual who resides at 1 Surrey Lane, Salem, New Hampshire 03079. 9. Plaintiff R.W.D. is an individual