The PEOPLE'S FREEDOM ENDEAVOR & Another v. COMMISSIONER OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-340

THE PEOPLE'S FREEDOM ENDEAVOR & another1

vs.

COMMISSIONER OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY
EDUCATION & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, an unincorporated association and a

nonprofit corporation with members who have children in various

public schools throughout the Commonwealth, appeal a Superior

Court judge's order denying their request for a preliminary

injunction prohibiting the Department of Elementary and

1 Children's Health Rights of Massachusetts, Inc. Other
plaintiffs named in the six complaints that were consolidated in
the Superior Court are not before us in this appeal.
2 Board of Elementary and Secondary Education, Department of

Elementary and Secondary Education, Andover public school
district, Attleboro public school district, Cambridge public
school district, Carver public school district, city of
Cambridge, Easton public school district, Franklin public school
district, Hingham public school district, Northborough public
school district, Northborough-Southborough regional public
school district, Sandwich public school district, Southborough
public school district, Tewksbury public school district,
Tyngsborough public school district, and West Bridgewater public
school district.
Secondary Education (department), the Board of Elementary and

Secondary Education (board), and various public school districts3

from requiring most public school students to wear masks while

attending public schools indoors.4 Concluding that the issues

are moot and the circumstances do not warrant reaching the

merits, we dismiss the appeal.5

Background. On August 25, 2021, in response to health and

safety concerns due to the COVID-19 pandemic, the department

issued a Statewide school mask mandate requiring all public

school students at least five years old and all staff "to wear

masks indoors" that "cover an individual's nose and mouth."6

Several local school districts also issued mask mandates. The

Statewide school mandate expired on February 28, 2022, and there

is no indication in the record that any of the defendant school

3 The school districts mentioned in note 2, supra, plus the
Bridgewater-Raynham regional school district, Dover public
school district, Dover-Sherborn regional school district,
Sherborn public school district, and town of Dover.
4 Children's Health Rights of Massachusetts also sought a

preliminary injunction against the city of Cambridge,
challenging Cambridge's city-wide indoor mask mandate requiring
members of the public to wear masks while inside public venues.
5 The city of Cambridge argues that Children's Health Rights of

Massachusetts lacked standing because it failed to allege any
member harmed by the city's mask order. Although it appears
that this argument has force, we do not reach it because we
decide this appeal on mootness grounds.
6 The city of Cambridge implemented its mask mandate on September

3, 2021.
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districts or municipalities still have local mask mandates in

place.7 The mandates triggered a series of lawsuits.

On September 20, 2021, the People's Freedom Endeavor and

the Family Freedom Endeavor, Inc., jointly filed a complaint in

Hampden Superior Court on behalf of certain parents of school-

aged children in Massachusetts seeking to enjoin the department

from implementing the mask requirement. Over the next two days,

additional plaintiffs filed five similar lawsuits that also

included related local school mask requirements. The Children's

Health Rights of Massachusetts filed complaints in Norfolk,

Bristol, and Plymouth Superior Courts. The fourth case was

brought in Middlesex Superior Court on behalf of eleven parents

and their children. Citizens for Medical Freedom, Inc., a

nonprofit corporation, brought the fifth suit in Norfolk

Superior Court.

The claims against the department and the board alleged

that the State lacked authority to issue the Statewide school

mask requirement and that the Statewide and local mask

requirements were "preempted" by statutory provisions conferring

authority on the Department of Public Health to regulate

infectious diseases. The complaints that included local towns

and municipalities also alleged that the Statewide mask

7 The city of Cambridge mask order expired on March 13, 2022.
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requirement and local requirements violate parents' right to due

process and natural rights under the Massachusetts Constitution

by interfering with their ability to make "healthcare decisions"

and otherwise direct the upbringing of their children.

On October 12, 2021, all six actions were consolidated for

hearing in Hampden Superior Court. On November 16, 2021, a

Superior Court judge denied plaintiffs' collective motions for

preliminary injunction, finding that plaintiffs failed to

demonstrate that they were likely to succeed on the merits of

their claims or that they had suffered or would suffer

irreparable harm. The People's Freedom Endeavor, Children's

Health Rights, and Citizens for Medical Freedom filed timely

notices of appeal.8 Children's Health Rights and Citizens for

Medical Freedom also filed petitions under G. L. c. 231, § 118,

first par., seeking review of the judge's decision by a single

justice of this court. On January 25, 2022, the single justice

denied the petition in a detailed memorandum and order

addressing all the parties' substantive claims. The single

justice ultimately determined that the plaintiffs failed to

8 Neither the Family Freedom Endeavor nor the individual parent
plaintiffs appealed. Although Citizens for Medical Freedom
filed a notice of appeal, it failed to file a brief and
accordingly is not a party to the present appeal. See Mass.
R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019).
4
sustain their burden to show a likelihood of success on the

merits.

Discussion. 1. Mootness. "[L]itigation is considered

moot when the party who claimed to be aggrieved ceases to have a

personal stake in its outcome" (citation omitted). Lynn v.

Murrell, 489 Mass. 579, 582 (2022) (challenge to emergency

executive orders imposing Statewide mask mandate in public

places became moot when orders rescinded). "A party no longer

has a personal stake in a case where a court can order no

further effective relief" (quotations and citation omitted).

Id. We agree with the defendants' argument that this appeal

should be dismissed as moot. The State and local mask

requirements that the plaintiffs seek to enjoin are no longer in

effect. Thus, there is nothing to enjoin.

b. Discretion to decide the issues. In reaching our

conclusion, we reject the plaintiffs' argument that we should

exercise our discretion to decide the issues despite their

mootness. "[D]ismissal for mootness may be inappropriate if the

situation presented is capable of repetition, yet evading

review" (quotation and citation omitted). Boelter v. Selectmen

of Wayland, 479 Mass. 233, 238 (2018). "In such circumstances,

we do not hesitate to reach the merits of cases that no longer

involve a live dispute so as to further the public interest"

(citation omitted). Id. Among the factors we consider in

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determining whether to decide a moot issue are the likelihood

that the question will "arise again in similar factual

circumstances" and, if so, whether "appellate review could not

be obtained before the recurring question would again be moot."

See Ott v. Boston Edison Co., 413 Mass. 680, 683 (1992).

Here, the plaintiffs' argument that the department's

extensions of its original order, as it faced an ongoing and

acute public health crisis in 2021, presages a reinstatement of

mask mandates now or in the future "overlooks the changes in

both the factual and legal landscape of the COVID-19 pandemic."

Lynn, 489 Mass. at 585. In Lynn, the Supreme Judicial Court

(SJC) noted that the contested emergency orders were "issued to

address an earlier variant of COVID-19 at a time when the State

had a limited number of protective measures at its disposal[,

but] [m]easures now available include multiple types of COVID-19

tests, vaccines, and COVID-19 treatments that can be

administered at home." Id. The SJC reasoned that "[t]hese

changes suggest that the factual underpinnings of the dispute

have so changed or are likely to so change as to make an

appellate decision a useless and inappropriate exercise"

(quotations and citation omitted). Id. As we analyze the

potential resurrection of mask requirements in public schools,

yet another year removed from the onset of COVID-19, that

6
reasoning applies with even more force.9 It is indisputable that

the current COVID-19 landscape bears little, if any, resemblance

to the circumstances existing when the Statewide public school

mask mandate was issued in August 2021. We therefore conclude

that the plaintiffs' contention that there is "a likelihood that

this [mask mandate] policy should return . . . at the whims of

[the department]" is no more than "[s]peculative fear of future

litigation," Bronstein v. Board of Registration in Optometry,

403 Mass 621, 627 (1988).

Although the plaintiffs do not specifically argue that the

relevant issues, if capable of repetition, likely would evade

review before again becoming moot, we pause to reiterate the

SJC's response to this concern in nearly identical circumstances

involving the broader Statewide mask mandate for all public

places. See Lynn, 489 Mass. at 580. To date, questions

regarding COVID-19 have not been "'evanescent' . . . like ones

related to pregnancy, commitment orders, and student suspension"

9 We note the recent Department of Health and Human Services
(HHS) announcement that the Federal public health emergency for
COVID-19 will expire on May 11, 2023. The HHS press release
indicated that "since the peak of the Omicron surge at the end
of January 2022: [d]aily COVID-19 reported cases are down 92%;
COVID-19 deaths have declined by over 80%; and [n]ew COVID-19
hospitalizations are down nearly 80%." U.S. Department of
Health and Human Services, Fact Sheet: COVID-19 Public Health
Emergency Transition Roadmap (Feb. 9, 2023),
https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-
public-health-emergency-transition-roadmap.html.
7
(citation omitted). Id. at 587. "Thus, it is impossible to

posit whether the circumstances that might spur a new Statewide

[public school] mask mandate, if they ever should arise, would

not last long enough to enable appellate review of a challenge

to such a mandate." Id.

In sum, where, as here, the underlying issue "has become a

'theoretical dispute'[,] . . . is not apt to evade review if it

arises again[,] . . . or is not likely to recur," Lockhart v.

Attorney Gen., 390 Mass. 780, 784 (1984), there is no basis for

reaching the merits. See Branch v. Commonwealth Employment

Relations Bd., 481 Mass. 810, 815-818, 818 n.17 (2019), cert.

denied, 140 S. Ct. 858 (2020).

Conclusion. The appeals of the People's Freedom Endeavor

and the Children's Health Rights of Massachusetts, Inc., are

dismissed, not on the merits but because they are moot. For the

same reason, the order of the Superior Court judge denying

injunctive relief is vacated. The case is remanded to the

8
Superior Court for such further proceedings, if any, as may be

appropriate.10

So ordered.

By the Court (Englander,
Grant & Brennan, JJ.11),

Clerk

Entered: April 4, 2023.

10 Because we do not reach the merits, the local districts'
request for appellate attorney's fees and costs is denied.
11 The panelists are listed in order of seniority.

9