Riley Drive Entertainment I, Inc. d/b/a Tonic Bar v. Governor Kimberly K. Reynolds, in Her Official Capacity as governor of the State of Iowa and Iowa Department of Public Health

IN THE SUPREME COURT OF IOWA

No. 20–1510

Submitted January 20, 2022—Filed February 18, 2022

RILEY DRIVE ENTERTAINMENT I, INC. d/b/a TONIC BAR; RILEY DRIVE
ENTERTAINMENT XVI, INC. d/b/a SAINTS PUB + PATIO WAUKEE;
CINDERELLA STORY, LLC d/b/a SHOTGUN BETTY’S; KISS MY GRITS, LLC
d/b/a THE IRISH; AGB, L.L.C. d/b/a ANNIE’S IRISH PUB; and W. WEST
INVESTMENTS, L.L.C. d/b/a WELLMAN’S PUB & ROOFTOP,

Appellants,

vs.

GOVERNOR KIMBERLY K. REYNOLDS, in Her Official Capacity as Governor
of the State of Iowa; and IOWA DEPARTMENT OF PUBLIC HEALTH,

Appellees.

Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.

Bars that were temporarily closed by a COVID-19 disaster proclamation

appeal the district court’s dismissal of their claims for injunctive and declaratory

relief. AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which all justices

joined.
 2

Billy J. Mallory (argued) and Daniel P. Kresowik of Brick Gentry, P.C., West

Des Moines, for appellants.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor

General, Tessa M. Register (argued), Heather L. Adams, and Samuel P. Langholz,

Assistant Attorneys General, for appellees.
 3

MANSFIELD, Justice.

I. Introduction.

During the COVID-19 pandemic in late August 2020, the Governor issued

a public health disaster proclamation that temporarily required bars and taverns

in six counties to close their doors. Six of those establishments filed this lawsuit,

seeking an injunction that would block the Governor’s order on grounds it

exceeded her statutory and constitutional authority. After the plaintiffs’ request

for a temporary injunction was denied, the Governor rescinded her order. At that

point, the district court granted the Governor’s request to dismiss the lawsuit as

moot and, alternatively, for failure to state a claim. The plaintiffs appeal.

The plaintiffs acknowledge their case is moot but urge us to exercise our

discretion to decide it anyway. The plaintiffs invoke the voluntary-cessation and

the public-importance exceptions to mootness. We conclude that neither of these

grounds is apt. We are not persuaded that the Governor rescinded her order in

response to this lawsuit; the order was always going to be temporary. Nor do we

think this is a case for the public-importance exception. The issues are

important, but many of the conditions during late summer of 2020 are unlikely

to be replicated. A decision here would not prevent future clashes over different

pandemic-related orders made under changed conditions. Precedent and

prudence together suggest we should not decide this case. Therefore, without

reaching the merits of the plaintiffs’ challenge, we affirm the district court’s

dismissal of this case as moot.
 4

II. Background Facts and Proceedings.

At the start of the COVID-19 pandemic, governors throughout the United

States harnessed their emergency powers to issue orders aimed at slowing the

spread of the virus. Iowa’s Governor issued her initial public health disaster

proclamation on March 9, 2020. State of Iowa Exec. Dep’t, Proclamation of

Disaster Emergency (Mar. 9, 2020). Then on March 17, she extended her

proclamation and added numerous state-wide restrictions intended to decrease

transmission of the virus. State of Iowa Exec. Dep’t, Proclamation of Disaster

Emergency (Mar. 17, 2020). These restrictions included the closing of fitness

centers, theaters, casinos, adult daycare facilities, and senior citizen centers. Id.

Restaurants and bars were closed except for carry-out business. Id. In addition,

all gatherings of more than ten people were banned. Id.

The March 17 order listed reasons for the restrictions:

WHEREAS, the World Health Organization has reported an
outbreak of thousands of cases of Novel Coronavirus 2019 (COVID-
19) in multiple countries, causing illness and deaths; and

....

WHEREAS, multiple cases of COVID-19 have been confirmed
in Iowa, and the Iowa Department of Public Health has determined
that community spread of COVID-19 is occurring within our state;
and

....

WHEREAS, COVID-19 can spread person-to-person and
poses a possibility of causing severe illness in certain populations
and disability and/or death to certain Iowans. Likewise, reports
forwarded by federal, state, and local officials indicate that state
assistance is needed to manage and contain this outbreak; and
 5

WHEREAS, the risk of transmission of COVID-19 may be
substantially reduced by separating and restricting the movement
of persons known or suspected to have the disease, or who have
been exposed to those known or suspected to have the disease . . . .

Id. (Emphasis omitted.)

The Governor’s COVID-19 public health disaster proclamation was

subsequently extended and modified numerous times. See COVID-19

Proclamations, COVID-19 in Iowa, https://coronavirus.iowa.gov/pages/proclamations

[https://perma.cc/5RER-35VF] (listing all COVID-19 disaster proclamations

issued by the Governor). One such modification prompted this lawsuit: On

August 27, during a rising tide of COVID-19 cases in Iowa, the Governor

mandated a temporary closure of bars and taverns in six counties, including

Polk and Dallas counties, through September 20. State of Iowa Exec. Dep’t,

Proclamation of Disaster Emergency (Aug. 27, 2020) (“All bars, taverns, wineries,

breweries, distilleries, night clubs, and other establishments that sell alcoholic

beverages for consumption on their premises shall be closed to the general

public . . . .”). The order made certain exceptions for carry-out service, private

gatherings, restaurants that derive most of their revenue from food, and the

consumption of alcoholic beverages on casino floors, inside theaters, and within

hotel rooms. Id.1 The August 27 order explained the reasoning behind it, stating,

1The order listed the following four exceptions:
(1) Carry-out, drive-through, and delivery: . . . [F]ood or beverages may be
sold if the food or beverages are promptly taken from the premises . . . .

(2) Private rental: An establishment that is closed to the general public
may still serve food and beverages at a private gathering hosted at the
establishment . . . .
 6

“[T]he continued spread of COVID-19 in the state of Iowa, especially in Black

Hawk, Dallas, Johnson, Linn, Polk, and Story counties warrants taking

additional reasonable measures to reduce the transmission of COVID-19.” Id. It

also referenced the March 17 order. Id.

The six captioned plaintiffs in this case operate licensed bars in Polk

County or Dallas County. All six businesses were required to close temporarily

as a result of the Governor’s August 27 order.

On August 28, two of these plaintiffs filed the initial petition in the Polk

County District Court against the Governor and the Iowa Department of Public

Health.2 The following week, all six plaintiffs (the Bars) filed an amended petition,

alleging that section 2(A) of the Governor’s August 27 order that closed their

doors was unlawful. The Bars’ petition made several legal claims: (1) a public

health disaster as defined in Iowa Code section 135.140(6) (2020) did not exist;

(2) the order wrongfully restricted only a portion of an “area affected” by a public

health disaster emergency instead of the entire area as required by section

29C.6(1); (3) the order also violated section 29C.6(1) because it did not state “in

(3) Restaurants: An establishment that prepares and serves food, the sale
of which results in at least half of the establishment’s monthly revenues may
reopen or remain open to serve food and beverages . . . .

(4) Premises: Bars located in hotels, casinos, movie theaters, or sporting
venues, or other establishments that are not required to be closed by this
paragraph must still close to the public except as permitted in this paragraph.
But this paragraph does not prohibit the consumption of alcohol on a casino floor,
inside an individual theater, or in a person’s hotel room . . . .

State of Iowa Exec. Dep’t, Proclamation of Disaster Emergency (Aug. 27, 2020)
(emphasis omitted).
2Hereafter, we will refer to the defendants collectively as “the Governor.”
 7

writing . . . the facts upon which it [was] based”; (4) the order was not a

“reasonable measure[] . . . necessary to prevent the transmission of infectious

disease and to ensure that all cases of communicable disease are properly

identified, controlled, and treated” under section 135.144(3); (5) the order

violated the Bars’ right to equal protection under the Iowa Constitution; and

(6) the order violated their due process rights under the Iowa Constitution. The

Bars sought injunctive relief, declaratory relief, and damages.

The Bars’ petition challenged certain facts recited in the Governor’s August

27 order, while adding that it was unlawful to single out bars and taverns as

opposed to other businesses. For example, portions of the petition alleged,

43. Defendants also cannot demonstrate that COVID-19
poses a “high probability” of a widespread exposure to an infectious
or toxic agent that poses a “significant risk of substantial future
harm” to a “large number” of the affected population.

44. Defendants cannot demonstrate that COVID-19 poses a
“high probability” of short-term or long-term “physical or behavioral
health consequences” to a “large number” of the affected population.

....

56. There is no evidence that the mere fact alcohol is being
sold for consumption on premises increases an individual’s risk of
contracting or passing away from COVID-19, or somehow increases
the severity of COVID-19 in an infected individual.

57. There is no evidence that consumption of alcohol at an
establishment either increases an individual’s risk of contracting or
passing away from COVID-19, or somehow increases the severity of
COVID-19 in an infected individual.

58. There is no evidence that COVID-19 is somehow more
likely to be transferred on alcoholic beverage containers than on
beverage containers containing non-alcoholic beverages.
 8

The petition also attacked the disparate treatment of bars and taverns in the six

designated counties as opposed to other counties.

The Bars moved for an immediate temporary injunction, supported by

affidavits and other evidence. The Governor filed a resistance, backed by an

affidavit of the State Epidemiologist and Public Health Medical Director. After an

expedited hearing, the district court denied the request for a temporary

injunction on September 4.

That same day, the Bars applied to our court for interlocutory review of

the district court’s denial of temporary injunctive relief. While that application

was still pending, the Governor moved in the district court to dismiss the

plaintiffs’ petition for failure to state a claim.

On September 15, the Governor issued a new proclamation. See State of

Iowa Exec. Dep’t, Proclamation of Disaster Emergency (Sep. 15, 2020). Citing

“changing public health conditions in the state of Iowa, especially in Black Hawk,

Dallas, Linn, and Polk counties,” the Governor lifted the temporary closure of

bars and taverns in those counties, allowing them to reopen the next day. At the

same time, the order continued the temporary bar closure in Johnson and Story

counties for only another five days, though September 20.

On October 1, the Governor filed a reply brief in the district court in

support of her motion to dismiss, making the further argument that the Bars’

claim for injunctive relief was now moot. Meanwhile, on October 6, our court

denied the Bars’ application for interlocutory review.
 9

Following another hearing, on November 16, the district court granted the

Governor’s motion to dismiss. First, the court determined that claims for

injunctive relief were moot, stating, “There is nothing for the Court to enjoin now

and the Court’s ultimate decision would have no force or effect.” The court

reasoned that the public-interest exception to the mootness doctrine did not

apply because the COVID-19 pandemic presents constantly evolving

circumstances and “[e]ven if Governor Reynolds issues a future order forcing

some establishments to close, the Court cannot say with any certainty that the

legal issues will be framed the same way.” The court also noted that “economic

rights generally hold less public significance than other constitutional rights.”

Turning to the voluntary-cessation doctrine, the court stated that “Iowa law does

not recognize [it] as an exception distinct from the public-interest exception.”

Next, the district court rejected the Bars’ damages claims for lack of

subject matter jurisdiction because they had failed to exhaust their remedies

under the Iowa Tort Claims Act. See Iowa Code §§ 669.5(1), .23(2).

Finally, the district court found in the alternative that the plaintiffs had

failed to state a claim. The court explained at the outset, “Although the Plaintiff[s]

state[] that they set forth specific facts to show that the Governor did not satisfy

the statutory requirements of the proclamation and that she acted outside the

scope of her authority, this Court finds these allegations really are legal

questions.” Thus, the court went on to consider whether the Governor had

overstepped her statutory authority or violated the Iowa Constitution, and it

found that she did not.
 10

On the statutory claims, the court held that the pandemic was a “public

health disaster” under Iowa Code section 135.140(6) because “COVID-19 was

clearly a novel infectious agent creating substantial risk.” Next, the Iowa Code

section 29C.6(1) requirement that the proclamation include the “facts upon

which it is based” was deemed satisfied because the March 17 order, which was

incorporated by reference into the August 27 order, listed sufficient reasons for

the declaration. Also, the court said it was acceptable under section 29C.6(1) to

“take an incremental and tailored approach to impose restrictions on only part

of an area affected.” Additionally, the court concluded the Governor did not

violate section 135.144(3) because, as the court explained,

The requirements of section 135.144(3) that the Proclamation be
“reasonable” and “necessary” do[] not mean that the Proclamation is
the best policy, that it is logically conveyed with appropriate data or
that it is necessary in the strictest sense. It simply means that there
is some connection between the Proclamation’s restrictions and the
disaster it is trying to address. The elected official should be given
the opportunity to balance risk and benefits across an entire
community or state. The Proclamation satisfies this
requirement . . . .

Regarding the plaintiffs’ constitutional claims, the district court decided

there had been no an equal protection violation because the Governor had given

a rational basis for the disparate treatment of bars, and for the disparate

treatment of the six selected counties:

[S]ocial distancing is difficult in establishments where people go to
socialize, the loud environment makes people huddle together closer
and talk more loudly, and alcohol lowers inhibitions, which can
make patrons less likely to follow social distancing and mask
guidelines. Bars in the selected counties may be greater
transmission risks, since each county has a university or a higher
population, and each of them is within the top ten counties in the
state for positive case counts.
 11

(Citation omitted.) The plaintiffs’ due process claim was also dismissed because

they “were not entitled to pre-deprivation process based on the impracticality of

the emergency situation.”

The plaintiffs appealed this ruling, and we retained the appeal. On appeal,

the Bars challenge only the dismissal of their claims for declaratory and

injunctive relief. They are not pursuing their damages claims.

On February 3, 2022, while this appeal was pending, the Governor

announced she would not renew her latest public health disaster proclamation

and would let her previously assumed COVID-19 emergency powers expire on

February 15. Press Release, Off. of the Governor of Iowa, Gov. Reynolds

Announces Expiration of Public Health Proclamation, Changes to COVID-19 Data

Reporting (Feb. 3, 2022), https://governor.iowa.gov/press-release/gov-reynolds-

announces-expiration-of%C2%A0public-health%C2%A0proclamation%C2%A0changes-

to-covid-19 [https://perma.cc/V52Q-HRU8] [hereinafter Feb. 3 Announcement].

III. Standard of Review.

A motion to dismiss ruling is reviewed for correction of errors at law.

Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 298 (Iowa 2020). “For purposes of

reviewing a ruling on a motion to dismiss, we accept as true the petition’s well-

pleaded factual allegations, but not its legal conclusions.” Id. (quoting Shumate

v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014)). A dismissal can only be

affirmed when the petition, viewed in its most favorable light, fails to present a

right of recovery. Id.
 12

Mootness is, however, “a threshold question.” Homan v. Branstad, 864

N.W.2d 321, 327 (Iowa 2015). An appellate court may consider matters

technically outside the district court record in determining a question of

mootness. Iowa Mut. Ins. v. McCarthy, 572 N.W.2d 537, 539 n.1 (Iowa 1997)

(collecting cases).

IV. Analysis.

“Courts exist to decide cases, not academic questions of law. For this

reason, a court will generally decline to hear a case when, because of changed

circumstances, the court’s decision will no longer matter. This is known as the

doctrine of mootness.” Homan, 864 N.W.2d at 328.

Bars in Polk and Dallas counties—including the plaintiffs’

establishments—are open now. They have been open since September 2020. On

November 16, 2020, following another spike in COVID-19 cases, the Governor

issued a different type of order that allowed bars, taverns, and other drinking

and dining establishments to remain open, but only until 10 p.m. State of Iowa

Exec. Dep’t, Proclamation of Disaster Emergency (Nov. 16, 2020). That restriction

on hours was lifted a month later, on December 17. Since then, bars and taverns

in the state have remained open. Accordingly, the parties agree that the Bars’

claims for injunctive and declaratory relief are now moot. See Baehne v. Indep.

Sch. Dist. of Manly, 207 N.W. 755, 756 (Iowa 1926) (holding that an appeal of a

school board order that refused admission to a child who declined to be

vaccinated for smallpox during an epidemic was moot because “more than one
 13

year had elapsed since the entry of the order appealed from” and “the resolution

. . . has long since expired”).

The issue is whether a mootness exception should prompt us,

nevertheless, to hear the case. We have the ability to hear moot cases in

appropriate circumstances. See Clarke Cnty. Reservoir Comm’n v. Robins

Revocable Tr., 862 N.W.2d 166, 173 (Iowa 2015) (“Mootness is not a question of

power but rather one of restraint.” (quoting Rush v. Ray, 332 N.W.2d 325, 326

(Iowa 1983))). Two exceptions have been asserted: voluntary cessation and public

importance.

A. Voluntary Cessation. We have never recognized the voluntary-

cessation doctrine by name in Iowa. But it is frequently applied in federal courts,

and the plaintiffs ask us to apply it here. In the words of the United States

Supreme Court:

It is well settled that “a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to
determine the legality of the practice.” “[I]f it did, the courts would
be compelled to leave ‘[t]he defendant . . . free to return to his old
ways.’ ”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189

(2000) (citation omitted) (omission and alterations in original) (quoting City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10 (1982)).3

3In a recent case granting preliminary injunctive relief to plaintiffs who sought to conduct
at-home religious gatherings during the COVID-19 pandemic, the Supreme Court touched on
the doctrine:
[E]ven if the government withdraws or modifies a COVID restriction in the course
of litigation, that does not necessarily moot the case. And so long as a case is not
moot, litigants otherwise entitled to emergency injunctive relief remain entitled to
 14

“Often described as a mootness exception, the voluntary-cessation

doctrine exists to stop a scheming defendant from trying to ‘immuniz[e] itself

from suit indefinitely’ by unilaterally changing ‘its behavior long enough to

secure a dismissal’ and then backsliding when the judge is out of the

picture . . . .” Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021) (alteration

in original) (quoting Town of Portsmouth v. Lewis, 813 F.3d 54, 59 (1st Cir.

2016)). “Pursuant to the ‘voluntary cessation’ exception, a civil action does not

become moot when a defendant voluntarily ceases its allegedly improper

behavior, if there is a reasonable chance that the behavior will resume.”

Lighthouse Fellowship Church v. Northam, 20 F.4th 157, 162 (4th Cir. 2021); see

also 1A C.J.S. Actions § 83, at 350 (2016) (“The voluntary cessation exception to

mootness exists to counteract the possibility of a defendant ceasing illegal action

long enough to render a lawsuit moot and then resuming the illegal conduct.”).

Assuming, without deciding, that the voluntary-cessation doctrine exists

in Iowa, we are not persuaded to apply it here. The August 27, 2020 order, when

issued, was set to expire on September 20. The Governor ended the order as to

bars in Polk, Dallas, Black Hawk, and Linn counties on September 15, five days

earlier than originally planned. We have not been pointed to anything suggesting

the Governor ended the order early or declined to renew it in order to avoid a

litigation showdown. Notably, there had already been a showdown and the

such relief where the applicants “remain under a constant threat” that
government officials will use their power to reinstate the challenged restrictions.

Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam) (quoting Roman Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam)).
 15

district court had taken a dim view of the Bars’ prospects for eventual success.

On September 4, the district court found the Bars were unlikely to prevail on the

merits when it denied their request for a temporary injunction, stating, “This

Court does not find a statutory violation in the Governor’s Proclamations that

allows the Plaintiffs a fair chance of prevailing . . . . Plaintiffs do not have a

likelihood of success on the merits of their Constitutional claims.”

Other appellate courts have declined to apply the voluntary-cessation

doctrine to COVID-19 emergency orders for similar reasons. See Parker v.

Governor of Pa., No. 20–3518, 2021 WL 5492803, at *4 (3d Cir. Nov. 23, 2021)

(“The voluntary cessation exception does not apply because the mandate expired

by its own terms and not as a response to litigation.”); Bos. Bit Labs, 11 F.4th at

10 (“That the Governor has the power to issue executive orders cannot itself be

enough to skirt mootness, because then no suit against the government would

ever be moot.”); Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020) (“Governor

Edwards’s stay-at-home orders expired by their own terms. The plaintiffs’

request that we enjoin them is therefore moot.”); Aguila v. Ducey, No. CV–20–

0335–T/AP, 2021 WL 1380612, at *1 (Ariz. Mar. 24, 2021) (“Although the

restrictions could return, the trend in Arizona has been to reopen, not close.”);

Bayshore Enters., Inc. v. Murphy, No. A–3616–19, A–3873–19, 2021 WL 3120868,

at *10–11 (N.J. Super. Ct. App. Div. July 23, 2021) (per curiam) (finding that

consolidated challenges to COVID-related restrictions were moot where the

restrictions were no longer in effect and stating, “We are not persuaded otherwise

by the . . . appellants’ reliance on the so called ‘voluntary cessation doctrine’ ”);
 16

Allen v. Lee, No. M2020–00918–COA–R3–CV, 2021 WL 2948775, at *5 (Tenn. Ct.

App. July 14, 2021) (“In the present case, there is no indication that the repeal

of the closure requirements was animated in any way by a desire to thwart

judicial review . . . .”). But see Ector Cnty. All. of Bus. v. Abbott, No. 11–20–00206–

CV, 2021 WL 4097106, at *7 (Tex. App. Sept. 9, 2021) (applying the voluntary-

cessation doctrine to deny a motion to dismiss when “the Governor and the State

did not meet their heavy burden to make it absolutely clear that restrictions on

people patronizing, and being served in, bars will not be reimposed through a

future executive order”).

B. Public Importance. The Bars also urge us to decide this case under

the public-importance exception to the mootness rule. This exception, unlike

voluntary cessation, is well-established in Iowa. Under this exception, we have

the discretion to decide a moot case if “matters of public importance are

presented and the problem is likely to recur.” Homan, 864 N.W.2d at 330

(quoting In re Guardianship of Kennedy, 845 N.W.2d 707, 711 (Iowa 2014)). In

determining whether to apply the public-importance exception, we consider four

factors:

(1) the private or public nature of the issue; (2) the desirability of an
authoritative adjudication to guide public officials in their future
conduct; (3) the likelihood of the recurrence of the issue; and (4) the
likelihood the issue will recur yet evade appellate review.

Id. (quoting Maghee v. State, 773 N.W.2d 228, 234 (Iowa 2009)).

The issues presented here are of a public nature and important. But that

doesn’t mean they are likely to recur, at least in the same form they had in
 17

August and September 2020. Consider the first five claims raised by the plaintiffs

in their petition.

First, the Bars allege there is no public health disaster as defined in Iowa

Code section 135.140(6). But the public health situation now is not what it was

in August or September 2020. The COVID-19 pandemic has evolved. Whether

the pandemic could fall under section 135.140(6) is a different question now

than it was a year and a half ago. In any event, on February 15, 2022, the

Governor’s declaration of a COVID-19 public health disaster emergency lapsed.

See Feb. 3 Announcement.

Second, the plaintiffs allege that it is illegal to target only bars and taverns

in certain counties. But the subsequent November 16, 2020 order affecting bars

didn’t discriminate geographically. Who knows if a new order would do so, even

if the Governor revived her public health disaster emergency declaration?

Third, the plaintiffs complain about the failure of the August 27, 2020

order to “indicate . . . the facts upon which it is based.” Iowa Code § 29C.6(1).

Yet a new closure order would presumably have its own, specific factual

recitation.

Fourth, the plaintiffs assert that the August 27, 2020 order was not a

“reasonable” response to the pandemic. But the pandemic has changed in

nature, even as it has continued.

Fifth, the plaintiffs allege that the Governor violated equal protection

principles in her order by singling out bars from other businesses and singling

out six of Iowa’s ninety-nine counties. However, there is no indication that a
 18

subsequent order would single out bars or specific counties in this fashion. The

November 16, 2020 order didn’t.

Beyond that, much of the Bars’ appeal as to the merits is centered on the

procedural status of this case. The district court dismissed the Bars’ case for

failure to state a claim. The Bars complain that they did not have the opportunity

to develop their case factually (although they had made an evidentiary

submission in support of their unsuccessful motion for a temporary injunction).

But the procedural status next time around may be entirely different.4

And we have no indication that there will be a next time around. In the

last year, the Governor has not moved to close businesses in our state despite

higher COVID-19 case numbers at times. See Iowa Dep’t Pub. Health, COVID-19

in Iowa: Summary Dashboard, https://coronavirus.iowa.gov/

[https://perma.cc/QCL3-UX84]. And recently she terminated the public health

emergency declaration altogether. See Feb. 3 Announcement.

The Bars downplay the relevance of COVID-19 closure cases from other

jurisdictions finding that legal challenges were moot. They observe, “Cases from

other jurisdictions were decided on different facts, on different statutes, and on

different terms.” But doesn’t the same observation—i.e., that every COVID-19

case is different—counsel against our deciding the merits of this case now that

4The Bars ask us to make an “authoritative adjudication” on the substantive issues they
have raised. Simultaneously, though, they challenge the district court’s ruling on procedural
grounds, namely, that the court improperly considered facts not alleged in their petition in
deciding a motion to dismiss. If we agreed with the Bars’ procedural challenge to the ruling, it is
unlikely that we would reach many of the substantive issues to make an “authoritative
adjudication.”
 19

the immediate dispute has ended? The next pandemic closure order in Iowa, if

and when there is one, could well involve different facts, different statutes, and

different terms. See Martin-Trigona v. Baxter, 435 N.W.2d 744, 745 (Iowa 1989)

(declining to apply the public-importance exception to a challenge to certain

procedures at the Democratic presidential caucus, noting that “[t]he Iowa

Democratic Party might well decide to change its caucus procedures, as it is

certainly free to do, before the next presidential election”).

Our precedents make clear that we do not invoke the public-importance

exception unless the dispute is likely to recur. For example, in Homan v.

Branstad, Governor Branstad and the Iowa Department of Human Services had

ordered the closing of a juvenile home a few months after the general assembly

had appropriated funds for its operation. 864 N.W.2d at 322. The plaintiffs sued

alleging that this action was unconstitutional under article IV, section 9 of the

Iowa Constitution. Id. at 325. The district court temporarily enjoined the closing

of the facility. Id. at 326. While our interlocutory review of the injunction was

pending, the general assembly ceased funding the juvenile home’s operations,

making the case moot. Id. at 327. Even though our decision would no longer

have any immediate effect, we considered whether the matter should be decided

under the public-importance exception. Id. at 330–32. In the end, we declined to

reach the merits. Id. at 332–33.

The issue in Homan was significant, but other factors weighed in favor of

dismissal. Id. at 331–32. We first noted that the likelihood of seeing the issue

emerge in future cases was very low. See id. at 332. Since the ratification of
 20

Iowa’s current constitution in 1857, we had never before been asked to interpret

the provision at issue, and nothing indicated that the issue would recur in the

near future. Id. Next, we recognized the limited utility our decision would have

as a guide for future conduct. See id. Some of the plaintiffs’ main arguments

concentrated on specific language from the appropriation bill and other statutory

requirements not likely to be relevant in other contexts. Id. Consequently, we

hypothesized that it might be “difficult to draw lessons from a decision on the

merits of this case, if we were to render such a decision.” Id. We concluded with

an acknowledgement that the legislative and executive branches could resolve

the dispute and, in fact, had already done so. See id. Out of respect for the other

two branches of government and for the other reasons previously mentioned, we

dismissed the case as moot. See id.

Several similarities to Homan are present here: The executive action that

is being challenged no longer has legal effect and there has been no threat to

renew it; the statutes we are being asked to interpret do not come before the

courts often; and the plaintiffs’ legal challenge raised some specific

circumstances that are not likely to be the same in the future.

The Bars rely on Board of Directors of the Independent School District v.

Green, 147 N.W.2d 854 (Iowa 1967). In that case, a school district’s policy did

not allow married students to participate in extracurricular activities. Id. at 856.

A recently married high school senior sued the district when he was not allowed

to continue playing on the basketball team. Id. By the time the case reached our

court, the plaintiff had already graduated. Id. Even so, we decided the merits of
 21

the case. Id. at 857. We noted that it was “probable any similar case arising in

the future will likewise become moot by ordinary standards before it can be

resolved by this court.” Id. Also, an authoritative adjudication in Green would

provide school officials with a concrete determination of the rule’s legality going

forward. See id.

Likewise, in In re Guardianship of Kennedy, we applied the public-

importance exception to the “important subject” of whether a guardian must

obtain advance court approval before arranging for the sterilization of a male

ward. 845 N.W.2d at 710–11. In that case, the sterilization had already occurred

when the case reached us. Id. at 710.

Green and Kennedy are good examples of when the public-importance

exception should be applied. Both cases presented individual, discrete points of

law that had arisen and were going to arise again. Our resolution of those issues

did not require us to examine a mosaic of outside factors that would probably

never be duplicated. Also, deciding those cases did not put us in the position of

rendering an abstract, advisory opinion on the legal authority of the head of a

coequal branch of government. That is something we generally try to avoid. See

Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991) (en banc) (“We certainly

should not go out of our way to answer a purely moot question because of its

possible political significance.”).

By contrast, a decision in this case would probably only provide a point of

reference. For example, the Bars want us to decide whether the August 27, 2020

order was (or was not) “reasonable,” and whether COVID-19 did (or did not)
 22

constitute a public health disaster at that time. Those determinations would be

tied to the political, social, and health environment of that moment. See Beshear

v. Goodwood Brewing Co., 635 S.W.3d 788, 801 (Ky. 2021) (“Although we

acknowledge the COVID-19 pandemic is not yet over, the factual circumstances

of the pandemic are much different now than they were in March 2020 or even

just a few months ago.”). It is unlikely that our decision would forestall future

legal conflicts over emergency orders during this or a future pandemic.

With these considerations in mind, a number of other state appellate

courts have declined to apply the public-importance exception to mootness

during the COVID-19 pandemic. See id. at 798–800 (deciding not to remand for

a new hearing on challenges to the Governor’s order brought by bars because

the pandemic evolved to change the “factual landscape” and the state legislature

had curbed the Governor’s emergency powers in a way that changed the “legal

landscape”); Beshear v. Acree, 615 S.W.3d 780, 824 (Ky. 2020) (declining to

review the Governor’s rescinded COVID-19 restrictions on the plaintiff’s

racetrack business because pandemic responses constantly evolve as knowledge

is gained and because of “ongoing attempts to balance that knowledge with

keeping the economy open”); N.C. Bowling Proprietors Ass’n v. Cooper, 847 S.E.2d

745, 746 (N.C. 2020) (dismissing a lawsuit brought by bowling alleys as moot

without considering possible exceptions after the Governor allowed the

businesses to reopen); C.R. Def. Firm, P.C. v. Wolf, 226 A.3d 569, 569–70 (Pa.

2020) (per curiam) (dismissing a challenge to an emergency order that closed the

plaintiff law firm’s “physical operations” once that order was modified to exempt
 23

legal services); Allen, 2021 WL 2948775, at *3 (declining to apply the public-

importance exception where there was no reasonable expectation “that the

Plaintiffs will be subjected to the complained-of requirements in the future”);

State v. City of Austin, NO. 03–20–00619–CV, 2021 WL 1313349, at *7 (Tex. App.

Apr. 8, 2021) (“[T]he State’s claims for the particular injunctive relief at issue

here are not capable of repetition and thus do not fall into the public-interest

exception to mootness.”); see also Parker, 2021 WL 5492803, at *4 (“The

plaintiffs have not shown that there is a reasonable expectation that the

statewide mask mandate will be reinstated . . . .”); Hawse v. Page, 7 F.4th 685,

692 (8th Cir. 2021) (“There is no reasonable expectation here that the County

will reinstate the Public Health Order of April 20, 2020, limit religious gatherings

to fewer than ten persons, and distinguish between attending religious services

and shopping at big box stores. The disputed order was superseded in May 2020

in light of changing public health conditions, and circumstances have evolved

substantially since then.”).

When our fellow state appellate courts have reached the merits of a

superseded COVID-19 order, typically the challenge has involved a single legal

issue that is expected to resurface. See, e.g., Green v. Alachua Cnty., 323 So. 3d

246, 249 n.2 (Fla. Dist. Ct. App. 2021) (“Because of the nature of the various

emergency orders that we have seen and the county’s continued commitment to

public mask-wearing, we are not convinced that this is the last that we will see

of this issue.”); Tavern League of Wis., Inc. v. Palm, 957 N.W.2d 261, 266–67 (Wis.

2021) (reaching the merits of a lawsuit brought by bars claiming the department
 24

of health’s closure order had to be promulgated by rulemaking). Turning to a

federal appellate example, in Big Tyme Investments, L.L.C. v. Edwards, the

United States Court of Appeals for the Fifth Circuit declined to dismiss as moot

an equal protection challenge to a state closure order that prohibited on-site

consumption of alcohol and food at bars but permitted it at restaurants. 985

F.3d 456, 464–65 (5th Cir. 2021). The specific order had lapsed, but the specific

legal issue raised by the bars remained—i.e., whether discrimination between

bars and restaurants violated the equal protection clause. Id. As the court put

it, “[T]he Governor’s subsequent orders continue to differentiate between ‘bars’

and ‘restaurants’ in their respective operating capacities and reopening gating

criteria. Consequently, even though the restrictions on ‘bars’ may have lessened,

the crux of the bar owners’ equal protection claim remains unchanged.” Id. at

465.5 By contrast, the present lawsuit involves multiple claims and issues;

indeed, the Bars’ own appellate brief identifies nine different questions they want

us to address. Some of them are quite open-ended and context-dependent.6

5Another distinguishable situation is where the defendant announces an intent to impose
the same executive order if conditions warrant. See Cnty. of L.A. Dep’t of Pub. Health v. Superior
Ct., 275 Cal. Rptr. 3d 752, 759 (Cal. Ct. App. 2021) (declining to dismiss a lawsuit brought by
restaurants challenging an expired closure order as moot where the county made it clear that it
would reimpose the same order if there was another surge in COVID-19 cases); see also Bayley’s
Campground, Inc. v. Mills, 985 F.3d 153, 157 (1st Cir. 2021) (reaching the merits of a challenge
to an expired self-quarantine order that presented a single claim implicating the constitutional
right to travel where “the Governor has not denied that a spike in the spread of the virus in Maine
could lead her to impose a self-quarantine requirement just as strict”). That is not the case here.
6For example, the identified questions include:
Does the pandemic constitute a “disaster” as defined under Iowa Code section
29C.2(4)?

....
 25

V. Conclusion.

For the reasons stated, we affirm the district court’s dismissal of this

action.
AFFIRMED.

. . . Under what circumstances does a “public health disaster” emergency
cease under Iowa law?

....

. . . Was the Order of Closure a “reasonable measure[] as necessary to
prevent the transmission of infectious disease and to ensure that all cases of
communicable disease are properly identified, controlled, and treated”?