1/18/2021
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APPEAL,STANDARD,STAYED

U.S. District Court District of Maine (Portland) CIVIL DOCKET FOR CASE #: 2:20-cv-00176-LEW

BAYLEY'S CAMPGROUND INC et al v. MILLS Assigned to: JUDGE LANCE E. WALKER Referred to: MAGISTRATE JUDGE JOHN H. RICH III Case in other court: First Circuit Court of Appeals, 20-01559 Cause: 42:1981 Civil Rights

Date Filed: 05/15/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
BAYLEY'S CAMPGROUND INC doing business as BAYLEY'S CAMPING RESORT

represented by GENE R. LIBBY LIBBY O'BRIEN KINGSLEY & CHAMPION, LLC 62 PORTLAND ROAD SUITE 17 KENNEBUNK, ME 04043 207-985-1815 Email: glibby@lokllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

KEITH P. RICHARD LIBBY O'BRIEN KINGSLEY & CHAMPION, LLC 62 PORTLAND ROAD SUITE 17 KENNEBUNK, ME 04043 207-985-1815 Email: krichard@lokllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

TYLER J. SMITH LIBBY O'BRIEN KINGSLEY & CHAMPION, LLC 62 PORTLAND ROAD SUITE 17 KENNEBUNK, ME 04043 207-985-1815 Email: tsmith@lokllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

FKT RESORT MANAGEMENT LLC

represented by GENE R. LIBBY

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Plaintiff FKT BAYLEY LIMITED PARTNERSHIP
Plaintiff DMJ PARKS LLC doing business as LITTLE OSSIPEE CAMPGROUND LLC
Plaintiff CURTIS BONNELL

District of Maine (NextGen)
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GENE R. LIBBY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GENE R. LIBBY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GENE R. LIBBY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD

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Plaintiff DOLORES HUMISTON
Plaintiff JAMES BOISVERT

District of Maine (NextGen)
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GENE R. LIBBY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GENE R. LIBBY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KEITH P. RICHARD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
TYLER J. SMITH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
JANET MILLS In her ofﬁcial capacity as the Governor of the State of Maine

represented by KIMBERLY L. PATWARDHAN OFFICE OF THE ATTORNEY GENERAL SIX STATE HOUSE STATION AUGUSTA, ME 04333-0006 (207) 626-8823 Email: kimberly.patwardhan@maine.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Interested Party UNITED STATES OF AMERICA

District of Maine (NextGen)
CHRISTOPHER C. TAUB OFFICE OF THE ATTORNEY GENERAL STATE HOUSE STATION 6 AUGUSTA, ME 04333-0006 207-626-8800 Email: Christopher.C.Taub@maine.gov ATTORNEY TO BE NOTICED
represented by ALEXANDER VIRGIL MAUGERI U.S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA AVENUE, NW STE 5740 WASHINGTON, DC 20530 202-616-5893 Email: alexander.maugeri@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

05/15/2020

1 COMPLAINT against JANET MILLS with Jury Demand ﬁled by FKT RESORT MANAGEMENT LLC, JAMES BOISVERT, BAYLEY'S CAMPGROUND INC, DOLORES HUMISTON, FKT BAYLEY LIMITED PARTNERSHIP, CURTIS BONNELL, DMJ PARKS LLC PAYMENT OF FILING FEE DUE WITHIN 48 HOURS. IF
FILING FEE IS BEING PAID WITH A CREDIT CARD COUNSEL ARE INSTRUCTED TO LOGIN TO CMECF AND DOCKET Case Opening Filing Fee Paid FOUND IN THE Complaints and
Other Initiating Documents CATEGORY. CHECK PAYMENTS DUE WITHIN 48 HOURS.. (Service of Process Deadline 8/13/2020) Fee due by 5/18/2020.(jwr) (Entered: 05/15/2020)

05/15/2020

2 CIVIL COVER SHEET. (jwr) (Entered: 05/15/2020)

05/15/2020

Set Deadlines : Per Local Rule 7.1 Notice of Interested Parties or Corporate Disclosure Statement due by 5/18/2020 from Plaintiffs. (jwr) (Entered: 05/15/2020)

05/15/2020

Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number AMEDC-2230656.), ﬁled by FKT RESORT MANAGEMENT LLC, JAMES BOISVERT, BAYLEY'S CAMPGROUND INC, DOLORES HUMISTON, FKT BAYLEY LIMITED PARTNERSHIP, CURTIS BONNELL, DMJ PARKS LLC.(SMITH, TYLER) (Entered: 05/15/2020)

05/15/2020

3 MOTION for Preliminary Injunction and Expedited Relief by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON Responses due by 6/5/2020. (Attachments: # 1 Declaration of Thomas Bayley, # 2 Declaration of Maryellen Bozza, # 3 Declaration of Curtis Bonnell, # 4 Declaration of Dolores Humiston, # 5 Declaration of James E. Boisvert, # 6 Declaration of Keith P. Richard, Esq.)(SMITH, TYLER) (Entered: 05/15/2020)

05/18/2020

4 NOTICE of TELEPHONIC Hearing: Telephone Conference set for 5/18/2020 03:00 PM in Judge Walker's Chambers before JUDGE LANCE E. WALKER. All participants have been provided call-in information.(meh) (Entered: 05/18/2020)

05/18/2020

5 CORPORATE DISCLOSURE STATEMENT by BAYLEY'S CAMPGROUND INC. (SMITH, TYLER) (Entered: 05/18/2020)

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05/18/2020

District of Maine (NextGen)
6 CORPORATE DISCLOSURE STATEMENT by DMJ PARKS LLC. (SMITH, TYLER) (Entered: 05/18/2020)

05/18/2020

7 CORPORATE DISCLOSURE STATEMENT by FKT BAYLEY LIMITED PARTNERSHIP. (SMITH, TYLER) (Entered: 05/18/2020)

05/18/2020

8 CORPORATE DISCLOSURE STATEMENT by FKT RESORT MANAGEMENT LLC. (SMITH, TYLER) (Entered: 05/18/2020)

05/18/2020

9 Minute Entry for proceedings held before JUDGE LANCE E. WALKER: Telephone Conference held. Response to ECF #3 due 5/25/2020. Reply to ECF #3 due 5/28/2020. No oral argument is needed. (Court Reporter: Melissa Merenberg) (meh) (Entered: 05/18/2020)

05/18/2020

Set Deadlines as to 3 MOTION for Preliminary Injunction and Expedited Relief : Responses due by 5/25/2020. Reply due by 5/28/2020. (meh) (Entered: 05/18/2020)

05/21/2020

10 WAIVER OF SERVICE Returned Executed JANET MILLS waiver sent on 5/18/2020. (SMITH, TYLER) Modiﬁed on 6/11/2020 to correct waiver sent date (meh). (Entered: 05/21/2020)

05/21/2020

Set Answer Deadline for JANET MILLS : Answer due by 7/20/2020. (meh) (Entered: 05/21/2020)

05/25/2020

11 NOTICE of Appearance by KIMBERLY L. PATWARDHAN on behalf of JANET MILLS (PATWARDHAN, KIMBERLY) (Entered: 05/25/2020)

05/25/2020 12 RESPONSE in Opposition re 3 MOTION for Preliminary Injunction and Expedited Relief ﬁled by JANET MILLS. Reply due by 6/8/2020. (TAUB, CHRISTOPHER) (Entered: 05/25/2020)

05/25/2020 13 AFFIDAVIT of Nirav Dinesh Shah, M.D., J.D. re 12 Response in Opposition to Motion ﬁled by JANET MILLS. (TAUB, CHRISTOPHER) (Entered: 05/25/2020)

05/25/2020 14 AFFIDAVIT of Derek P. Langhauser re 12 Response in Opposition to Motion ﬁled by JANET MILLS. (TAUB, CHRISTOPHER) (Entered: 05/25/2020)

05/25/2020

Set Deadlines as to 3 MOTION for Preliminary Injunction and Expedited Relief : Reply due by 5/28/2020. (meh) (Entered: 05/26/2020)

05/26/2020 15 Unopposed MOTION to Enlarge Page Limitation by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON Responses due by 6/16/2020. (SMITH, TYLER) (Entered: 05/26/2020)

05/26/2020

16 ORDER granting 15 Unopposed Motion to Enlarge Page Limitation By JUDGE LANCE E. WALKER. (meh) (Entered: 05/26/2020)

05/28/2020

17 REPLY to Response to Motion re 3 MOTION for Preliminary Injunction and Expedited Relief ﬁled by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON. (Attachments: # 1 Wiley & Vladek Law Review Article, # 2 CDC COVID-19 Planning Scenarios)(SMITH, TYLER) (Entered: 05/28/2020)

05/29/2020

18 NOTICE of Appearance by ALEXANDER VIRGIL MAUGERI on behalf of UNITED STATES OF AMERICA (MAUGERI, ALEXANDER) (Entered: 05/29/2020)

05/29/2020 19 BRIEF by UNITED STATES OF AMERICA. (MAUGERI, ALEXANDER) (Entered: 05/29/2020)

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05/29/2020
06/01/2020

District of Maine (NextGen)
20 ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION denying 3 Motion for Preliminary Injunction By JUDGE LANCE E. WALKER. (CJD) (Entered: 05/29/2020)
21 INTERLOCUTORY APPEAL as to 20 Order on Motion for Preliminary Injunction by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON . ( Filing fee $ 505 receipt number AMEDC-2240846.)

NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from our web site at http://www.med.uscourts.gov/forms/ MUST be completed and submitted to the Court of Appeals. Counsel should also register for a First Circuit CM/ECF Appellate Filer Account at https://pacer.psc.uscourts.gov/pscof/regWizard.jsf and review the First Circuit requirements for electronic ﬁling by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf (LIBBY, GENE) Modiﬁed on 6/2/2020 to change Appeal type to Interlocutory (meh). (Entered: 06/01/2020)

06/01/2020

22 APPEAL COVER SHEET Re: 21 Notice of Appeal (bfa) (Entered: 06/01/2020)

06/01/2020

23 CLERK'S CERTIFICATE Re: 21 Notice of Appeal. Documents sent to the U.S. Court of Appeals. (bfa) (Entered: 06/01/2020)

06/01/2020

Abbreviated Appeal Record Transmitted Electronically to U.S. Court of Appeals re 21 Notice of Appeal (bfa) (Entered: 06/01/2020)

06/01/2020

24 USCA Case Number 20-1559 for 21 Notice of Appeal, ﬁled by JAMES BOISVERT, DOLORES HUMISTON, FKT RESORT MANAGEMENT LLC, BAYLEY'S CAMPGROUND INC, FKT BAYLEY LIMITED PARTNERSHIP, CURTIS BONNELL, DMJ PARKS LLC. (bfa) (Entered: 06/01/2020)

06/02/2020

25 MOTION for Preliminary Injunction Pending Appeal by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON Responses due by 6/23/2020. (SMITH, TYLER) (Entered: 06/02/2020)

06/02/2020

COPIES of Notice of Appeal Sent to Counsel Re: 21 Notice of Appeal, ﬁled by JAMES BOISVERT, DOLORES HUMISTON, FKT RESORT MANAGEMENT LLC, BAYLEY'S CAMPGROUND INC, FKT BAYLEY LIMITED PARTNERSHIP, CURTIS BONNELL, DMJ PARKS LLC. (tcs) Modiﬁed on 6/3/2020 to correct date ﬁled (tcs). (Entered: 06/03/2020)

06/03/2020

Per Judge Lance Walker response and reply deadlines are to be expedited reset Deadlines as to 25 MOTION for Preliminary Injunction Pending Appeal : Responses due by 6/9/2020. Reply due by 6/12/2020. (meh) Modiﬁed on 6/3/2020 to add expedited response and reply wording (meh). (Entered: 06/03/2020)

06/04/2020

26 MOTION for Reconsideration re 20 Order on Motion for Preliminary Injunction by BAYLEY'S CAMPGROUND INC, JAMES BOISVERT, CURTIS BONNELL, DMJ PARKS LLC, FKT BAYLEY LIMITED PARTNERSHIP, FKT RESORT MANAGEMENT LLC, DOLORES HUMISTON Responses due by 6/25/2020. (SMITH, TYLER) (Entered: 06/04/2020)

06/05/2020 27 ORDER ON PLAINTIFFS' MOTION FOR EXPEDITED INJUNCTION PENDING APPEAL AND MOTION FOR RECONSIDERATION denying 25 Motion for Preliminary Injunction; denying 26 Motion for Reconsideration By JUDGE LANCE E. WALKER. (CJD) (Entered: 06/05/2020)

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06/08/2020 06/09/2020 01/12/2021
01/13/2021
01/15/2021

District of Maine (NextGen)
28 Unopposed MOTION to Stay Pending Appeal by JANET MILLS Responses due by 6/29/2020. (TAUB, CHRISTOPHER) (Entered: 06/08/2020)
29 ORDER granting 28 Motion to Stay Pending Appeal By JUDGE LANCE E. WALKER. (meh) (Entered: 06/09/2020)
30 ***Filed in Error. Counsel to ﬁle a Motion to Withdraw as Attorney*** NOTICE/CORRESPONDENCE Re: Attorney Withdrawal by UNITED STATES OF AMERICA (MAUGERI, ALEXANDER) Modiﬁed on 1/12/2021 to indicate ﬁled in error (jgd). (Entered: 01/12/2021)
31 MOTION by Attorney Alexander V. Maugeri to Withdraw as Attorney by UNITED STATES OF AMERICA Responses due by 2/3/2021. (MAUGERI, ALEXANDER) (Entered: 01/13/2021)
32 ORDER denying 31 Motion to Withdraw as Attorney. The motion is denied without prejudice, as, from all that appears, the United States remains an Interested Party and no successor counsel has entered an appearance. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 01/15/2021)

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 Case 2:20-cv-00176-LEW Document 1 Filed 05/15/20 Page 1 of 15 PageID #: 1

United States District Court District of Maine

Bayley’s Campground, Inc., d/b/a Bayley’s Camping Resort; FKT Resort Management, LLC; FKT Bayley Limited Partnership; DMJ Parks, LLC, d/b/a Little Ossipee Campground, LLC; Curtis Bonnell of Salem, NH; Dolores Humiston of Meredith, NH; James Boisvert of Scarborough, ME,

Civil Action No.

Plaintiffs

v.

Janet T. Mills, in her official capacity as the Governor of the State of Maine

Defendant

Complaint for Declaratory Judgment and Injunctive Relief

Plaintiffs, by and through their undersigned attorneys, hereby allege against

Defendant the following:

Parties

1. Plaintiff Bayley’s Campground, Inc., d/b/a Bayley’s Camping Resort, is a

corporation organized under the laws of the State of Maine, with a principal place of

business in Scarborough, Maine.

2. FKT Resort Management, LLC is a limited liability company organized under

the laws of the State of Maine, with a principal place of business in Scarborough, Maine, and

the management entity of Little River Bar & Grille and the Seaside Square Café.

3. Plaintiff, FKT Bayley Limited Partnership, is a limited partnership organized

under the laws of the State of Maine, with a principal place of business in Scarborough,

Maine.

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4. DMJ Parks LLC, d/b/a Little Ossipee Campground, is a limited liability company organized under the laws of the State of Maine, with a principal place of business in Waterboro, Maine.
5. Curtis Bonnell is an individual who resides in Salem, New Hampshire. 6. Dolores Humiston is individual who resides in Meredith, New Hampshire. 7. James Boisvert is an individual who resides in Scarborough, Maine. 8. Defendant Janet T. Mills is the Governor of the State of Maine and is sued in her official capacity only.
Jurisdiction and Venue 9. This Court has subject matter jurisdiction over Plaintiff’s claims under its federal question jurisdiction, 28 U.S.C. § 1331. 10. Venue is properly in the District of Maine under 28 U.S.C. § 1391(b)(1)-(2) because Defendant Janet T. Mills is the Governor of the State of Maine, resides in the State of Maine, and because a substantial part of the events or omissions giving rise to the claim occurred in the State of Maine.
Executive Orders and Restarting Plan 11. The Governor of the State of Maine is statutorily authorized to issue an emergency proclamation, which authorizes the use of enumerated emergency powers under 37-B M.R.S. § 742. 12. On March 15, 2020, Governor Mills declared a state of emergency proclamation to authorize the use of emergency powers with respect to COVID-19. 13. On March 24, 2020, Governor Mills issued Executive Order 19 FY 19/20, which selected Maine businesses as “essential” and “non-essential,” and directed non-
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essential businesses to “cease activities at sites that are public facing and thereby allow customer, vendor, or other in-person contact; or are sites that require more than 10 workers to convene in space where social distancing is not possible.”
14. On April 3, 2020, Governor Mills issued Executive Order 34 FY 19/20, which ordered that all lodging operations must close as non-essential businesses, subject to certain enumerated exceptions. The Order defines lodging operations to include campgrounds.
15. Executive Order 34 FY 19/20 further orders that, “To preserve the public health and safety, to ensure the public health and health delivery system are capable of serving all, and to help protect those at the highest risk and vulnerability, any person, resident or non-resident, traveling into Maine must immediately self-quarantine for 14 days or for the balance of 14 days dating from the day of arrival, except when engaging in essential services as defined in Executive Order 19 FY 19/20.”
16. By contrast, New Hampshire, the only state with which Maine shares a border, does not have any quarantine requirements for people entering the State.
17. Executive Order 34 FY 19/20 also bans all travel from certain regions as follows: “Visitors are instructed not to travel to Maine if they are displaying symptoms of COVID-19, and are advised not to travel to Maine if they are travelling from cities and regions identified as COVID-19 ‘hot spots,’ including, among others, the cities of Detroit, Chicago and New York City. In addition, residents of the States of New York, New Jersey and Connecticut should refrain from travel to Maine in strict compliance with USCDC travel guidance issued Saturday, March 28, 2020 and any subsequent travel guidance that may be issued during the pendency of this Order.” Executive Order 34 FY 19/20 § 1 (4).
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18. Executive Order 34 FY 19/20 states that a violation may be charged as a Class E crime subject to a penalty of up to six months in jail and a $1,000 fine. In addition, Executive Order 34 FY 19/20 orders that it “may be enforced by any governmental department or official that regulates, licenses, permits or otherwise authorizes the operations of occupancy of buildings, parks and campgrounds[,]” and that a violation of the Order “may be construed to be a violation of any such license, permit or other authorization to which pertinent penalties may be assessed.”
19. Upon information and belief, the Governor and state officials have utilized local and county law enforcement to enforce the Executive Orders, and intend to penalize, through criminal penalties and/or regulatory permitting or licensing consequences, those businesses and individuals that defy the order.
20. On April 29, 2020, Governor Mills issued Executive Order 49 FY 19/20, which extended the effective dates of the Executive Orders described above through May 31, 2020 and purported to incorporate a “Restarting Plan.”
21. Governor Mills delegated implementation of the Restarting Plan to the Department of Economic and Community Development (“DECD”), an agency headed by Commissioner Heather Johnson.
22. Commissioner Johnson has acted as the public face of the Restarting Plan, and a conduit for feedback from the public and business community to the Governor’s office and heading DECD, the agency tasked with implementing the Plan.
23. Commissioner Johnson has hosted a series of Zoom videoconference meetings for the public and business community in which she answers questions and provides guidance on the Executive Orders and Restarting Plan.
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24. Statements of interpretative guidance made by Commissioner Johnson make clear that the 14-day quarantine requirement is interpreted strictly.
25. Quarantine requires the individual to remain at home, to refrain from leaving home to gather necessary items such as groceries, not interact with others, and precludes, among other activities, engaging in commerce.
26. The requirement applies to all border crossings, including de minimis crossings by Mainers in “border towns” that cross back and forth daily for work, activities, and to engage in commerce.
27. For example, an individual that crosses from Maine into New Hampshire to visit a business there, and immediately returns to Maine must self-quarantine upon return.
28. Commissioner Johnson has alluded to alternatives to quarantine requirements, including testing, although to date none have materialized.
29. The “Restarting Plan” is published on a website, available at https://www.maine.gov/covid19/restartingmaine, and sets forth four gradual stages of reopening Maine’s economy.
30. “Stage 1, May” of the Restarting Plan “contemplates a continued . . . 14-day quarantine on people entering Maine[,]” and identifies several businesses that may reopen, so long as they comply with detailed checklists. Lodging operations are not among the businesses that may re-open during Stage 1.
31. “Stage 2, June” of the Restarting Plan “contemplates a continued . . . 14-day quarantine on people entering Maine.” Stage Two provides that lodging operations and Campgrounds/RV parks may “[o]pen to Maine residents and out-of-state residents who have completed quarantine guidelines.”
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32. The Stage 2 “checklist” for Campgrounds provides, among other things, “Guest visitation restricted to Maine residents and out of state visitors who have met the 14-day quarantine requirement at this time per executive order.”
33. “Stage 3, July—August” of the Restarting Plan “maintains . . . the 14-day quarantine on people entering Maine.” Stage 3’s list of openings includes, “Lodging, such as hotels, campgrounds, summer camps, or RV parks for Maine residents and visitors. The Administration is developing guidelines (e.g. potential testing requirements) to assist them in safely reopening.”
34. “Stage 4, TBD” only reads “All businesses are open and operating with appropriate safety modifications.” The Restarting Plan does not specify when Stage 4 will be implemented or whether the 14-day quarantine restriction will remain in effect.
35. The Governor has since modified the initial Restarting Plan by announcing a separate plan known as the “Rural Reopening Plan” that will apply in Maine’s twelve “rural” counties.
36. The Governor rolled out the Rural Reopening Plan on May 8, 2020. 37. According to the website, “retail stores and restaurants in Aroostook, Piscataquis, Washington, Hancock, Somerset, Franklin, Oxford, Kennebec, Waldo, Knox, Lincoln, and Sagadahoc counties will be permitted to open in-store and dine-in service with enhanced safety precautions. Additionally, remote campsites as well as sporting camps are also permitted to reopen with public health safeguards in these counties.” 38. The Rural Reopening Plan does not apply to York, Cumberland, Androscoggin, or Penobscot counties.
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39. The Governor’s Rural Reopening Plan creates two classes of businesses— those in rural counties and those everywhere else—the former allowed to reopen, while the latter remain closed.
40. The Governor has justified the distinction on the basis that those counties have not experienced community transmission.
General Allegations 41. By March 25, 2020, Maine met the U.S. Centers for Disease Control (“CDC”) criteria for a moderate level of community transmission of COVID-19. The Maine Centers for Disease Control (“Maine CDC”) has reported signs of community transmission of COVID19 as early as March 16, 2020 in Cumberland County, and March 26, 2020 in York County. 42. As of May 14, 2020, Maine CDC is reporting 1,515 total cases of COVID-19, which includes 744 cases in Cumberland County, and 269 cases in York County, see https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus.shtml. 43. As of May 13, 2020, Maine CDC has conducted 33,035 tests.
Campground Plaintiffs 44. Plaintiffs, Bayley’s Campground, Inc. and Little Ossipee Campground, LLC (“the Campgrounds”), operate campgrounds located in Cumberland and York Counties, respectively. 45. FKT Bayley Limited Partnership, operates FKT Resort Management, LLC, which manages the Little River Bar & Grille as well as the Seaside Square Café, which offer food and drink to patrons of Bayley’s Campground. 46. The camping season in Maine generally runs from Memorial Day through Columbus Day weekend. A substantial number of the visitors to the Campgrounds are out-
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of-state residents. Collectively, visitors to Maine campgrounds inject millions of dollars into Maine’s economy every summer.
47. The Campgrounds have all experienced an economic injury from the 14-day quarantine restriction, as a there have been a substantial number of cancellations by outof-state campers who are unable or unwilling to self-quarantine for 14-days upon their arrival to Maine. Many of these cancellations specifically reference the 14-day quarantine restriction as the reason for the cancellation.
48. The Campgrounds have a compelling interest in defending the constitutional rights of their customers, who wish to access the Campgrounds’ services but cannot do so as a result of the travel restrictions. In addition, the 14-day quarantine restriction on people entering the State of Maine is inextricably linked with the limitations placed on campgrounds in the Restarting Plan. Those limitations risk depriving the putative campers of a judicial forum because the Campgrounds are ordered to be closed as to out-of-state visitors who have not completed a 14-day quarantine. The Campgrounds’ assertion of these rights is congruent with both the interests of the Campgrounds and the customers.
49. FKT Resort Management, LLC, separately, by and through the Little River Bar & Grille and the Seaside Square Café, has suffered an economic injury by not being permitted to reopen under the current Executive Orders, DECD guidance, and the Governor’s reopening plan.
50. Little River Bar & Grille and the Seaside Square Café are located in Scarborough, Cumberland County.
51. If the Little River Bar & Grille and the Seaside Square Café were located in Aroostook, Piscataquis, Washington, Hancock, Somerset, Franklin, Oxford, Kennebec,
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Waldo, Knox, Lincoln, or Sagadahoc county, they would be allowed to reopen under the Rural Reopening Plan.
Individual Plaintiffs 52. Absent the 14-day quarantine restrictions, James Boisvert, who resides in Scarborough, ME, would exercise his right to interstate travel and temporarily leave Maine to travel out of state to recreate, associate with friends, visit businesses, and simply take trips through New Hampshire for a variety of purposes. (See Boisvert Aff.) 53. The mandate that people entering the State of Maine quarantine for 14-days practically deprives Mr. Boisvert from traveling as desired. 54. Mr. Boisvert is scheduled to leave the State of Maine on May 18, 2020 and he intends to return to Maine on May 29, 2020. The mandate that people entering the State of Maine quarantine for 14-days will require Mr. Boisvert to quarantine for 14-days by the mere fact of crossing the Maine border. 55. Absent the quarantine restrictions, Curtis Bonnell, who resides in Salem, NH, would exercise his right to interstate travel to enter the State of Maine. (See Bonnell Aff.) 56. The mandate that people entering the State of Maine quarantine for 14-days practically deprives Mr. Bonnell from traveling to Maine as desired. 57. Absent the quarantine restrictions, Dolores Humiston, who resides in Meredith, NH, would exercise her right to interstate travel to enter the State of Maine. (See Humiston Aff.) 58. The mandate that people entering the State of Maine quarantine for 14-days practically deprives Ms. Humiston from traveling to Maine as desired.
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59. The executive orders provide no mechanism for the individual plaintiffs to challenge the requirement that they self-quarantine for 14-days after entering Maine.
COUNT 1 (42 U.S.C. § 1983 and Declaratory Judgment – Violation of the Constitutional Right to
Travel) 60. Plaintiffs reallege and incorporate by reference all other allegations contained in this Complaint. 61. The United States Supreme Court has held that the “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966)). This right is “virtually unconditional.” Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969)). See also United States v. Guest, 383 U.S. 745, 757, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966) ("The constitutional right to travel from one State to another ... occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized."). 62. Likewise, the Maine Constitution provides that “All people are born equally free and independent, and have herein certain natural, inherent and unalienable rights, among which are those enjoying and defending life and liberty, acquiring, possessing and protected property, and pursuing and obtaining safety and happiness[,]” Me. Const. Art. I, § 1, and that “No person shall be deprived of life, liberty or property without due process of law,” Me. Const. Art. I, § 6-A. 63. The restrictions in the Executive Orders and incorporated Restarting Plan infringe on the right of interstate travel, as guaranteed by the Privileges and Immunities Clause of Article IV of the U.S. Constitution, the Privileges or Immunities Clause of the
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Fourteenth Amendment, the substantive due process component of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, of the Maine Constitution.
64. The restrictions on interstate travel in the Executive Orders and incorporated Restarting Plan are neither narrowly tailored nor the least restrictive means for advancing a compelling governmental interest. In contrast, these restrictions significantly burden the right to interstate travel and cause a chilling effect on interstate travel.
65. By enacting the restrictions on interstate travel, Governor Mills, acting under color of law, has deprived citizens of Maine and the citizens of the several States of their fundamental right to travel, as guaranteed by the Maine Constitution and the United States Constitution, in violation of 42 U.S.C. § 1983. Plaintiffs seek a declaration that the Executive Orders and Restarting Plan violate the right to interstate travel, and an injunction against further infringement of this right.
COUNT 2 (42 U.S.C. § 1983 and Declaratory Judgment – Procedural Due Process) 66. Plaintiffs reallege and incorporate by reference all other allegations contained in this Complaint. 67. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides that no State can “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1, cl. 3. The U.S. Supreme Court has stated that “[T]here can be no doubt that at a minimum [procedural due process] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and
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opportunity for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
68. Article I, Section 6-A of the Maine Constitution provides that “No person shall be deprived of life, liberty or property without due process of law. . . .”
69. Individuals have a substantive and procedural due process right to be free from government interference and restriction of their liberty.
70. The Executive Orders and 14-day quarantine requirement apply to Plaintiffs and similarly-situated individuals without respect to whether they have COVID-19 or present a risk of transmitting the disease.
71. Plaintiffs have no opportunity to challenge the basis for their quarantine, nor to exercise their rights without threat of criminal penalty.
72. The Executive Orders and 14-day quarantine requirement deprive Plaintiffs of their liberty without due process of law.
73. The restrictions on interstate travel deprive Plaintiffs and their customers of their constitutional rights, as discussed above, without any pre- or post-deprivation process.
74. By enacting the restrictions on interstate travel, Governor Mills, acting under color of law, have deprived citizens of Maine and the citizens of the several States of procedural due process, as guaranteed by the Maine Constitution and the United States Constitution, in violation of 42 U.S.C. § 1983. Plaintiffs seek a declaration that the Executive Orders and Restarting Plan violate the right to interstate travel and due process, and seek an injunction against further infringement of these rights.
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COUNT 3 (42 U.S.C. § 1983 and Declaratory Judgment - Violation of Due Process, Equal
Protection: Rural Reopening Plan) 75. Plaintiffs reallege and incorporate by reference all other allegations contained in this Complaint. 76. The United States Constitution guarantees that "[n]o person shall be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V; Me. Const. art. I, § 6-A. 77. The Maine Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws." Me Const. art. 1, § 6-A. 78. Although the Maine Constitution is considered coextensive with the United States Constitution, Maine’s Constitution and Declaration of Rights has independent meaning and vitality. See Portland v. Jacobsky, 496 A.2d 646, 649 (Me. 1985). 79. Businesses in all parts of Maine are similarly situated, in that during the summer seasonal months, they cater to Mainers and out-of-state visitors alike. 80. The Rural Reopening plan creates “winners” and “losers” of the same, similarly situated businesses, based solely upon their location within the State of Maine, even though they carry on the same activities, provide the same services, and cater to the same clientele. 81. The distinction between counties is an unlawful discrimination against businesses based upon their county of operation, and is unreasonable, arbitrary, capricious, and without a justifiable rational basis.
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82. The Rural Reopening Plan violates the Due Process and Equal Protection Rights of businesses located in Maine that are not designated as “rural” counties.
83. Rural Reopening Plan violates the Due Process and Equal Protection rights of FKT Resort Management’s restaurant and bar operations.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (A) Declare that the challenged orders unconstitutionally infringe upon Plaintiffs’ rights to interstate travel, due process, and equal protection; (B) Enjoin enforcement of the unconstitutional aspects of the challenged orders; (C) Award Plaintiffs their costs, including reasonable attorney fees, as allowed by 42 U.S.C. § 1988; and (D) Award Plaintiffs such further and other relief as the Court deems fit.
JURY DEMAND Plaintiffs request a jury trial on all issues so triable.
Plaintiffs, By their attorneys,

Dated: May 15, 2020

/s/ Gene R. Libby Gene R. Libby, Esq., Bar No. 427 Libby O’Brien Kingsley & Champion, LLC 62 Portland Road, Suite 17 Kennebunk, ME 04043 Tel: (207) 985-1815 glibby@lokllc.com

Dated: May 15, 2020

/s/ Tyler J. Smith Tyler J. Smith, ME Bar # 4526 Libby O’Brien Kingsley & Champion, LLC 62 Portland Road, Suite 17 Kennebunk, ME 04043 Tel: (207) 985-1815 tsmith@lokllc.com
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Dated: May 15, 2020

/s/ Keith P. Richard Keith P. Richard, Esq., Bar No. 5556 Libby O’Brien Kingsley & Champion, LLC 62 Portland Road, Suite 17 Kennebunk, ME 04043 Tel: (207) 985-1815 krichard@lokllc.com

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

BAYLEY’S CAMPGROUND, INC, d/b/a BAYLEY’S CAMPING RESORT, et al.,
Plaintiff
v.
JANET MILLS, in her official capacity as the Governor of the State of Maine,
Defendant.

CIVIL ACTION NO.: 2:20-cv-00176-LEW

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
The State of Maine, like the rest of the world, is confronting a public health emergency of a magnitude unseen in at least a century. COVID-19, a respiratory illness that has killed approximately 345,000 people worldwide, is here in Maine. The illness is caused by a virus that has never been seen before and is poorly understood. What is known, though, is that it spreads through personal contact and that persons often spread the virus before they even know they have it. Because there is no vaccine or effective pharmaceutical treatment for the virus, it is critical to control the virus’s spread. This reduces the chances of individuals contracting the virus and ensures that sufficient medical resources will be available to care for those who do contract it. While Maine’s health care system has proved capable of managing COVID-19 cases to date, a sudden influx of new cases could overwhelm the system. Maine has a population of just 1.3 million residents. Last summer there were 22.1 million non-resident visits, with over half of those visits coming from states where infection rates are much higher than in Maine. Recognizing the need to control the virus and protect our residents, Maine’s Governor, through a carefully calibrated process and in close consultation with government officials and public health experts,

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has issued a series of Executive Orders pursuant to her authority under state law. Many of these orders are intended to prevent members of the existing population from infecting each other. The order at issue here addresses the risk posed by a potential influx of millions of people. To be clear, the order does not ban travel into or from Maine. Rather, it simply imposes the reasonable requirement that upon arrival, persons (including returning Mainers) self-quarantine for 14 days before interacting with others in the community. If a person is asymptomatic after 14 days, it is unlikely that he or she carried in the virus, and the person can then engage in activities in Maine to the same extent, and subject to the same Executive Orders, as the rest of Maine’s population.
The self-quarantine order does not implicate or violate the constitutional right-to-travel or any other constitutional provision. As the Supreme Court held long ago, states have broad latitude when confronting a public health emergency, and the normal constitutional analysis does not apply. Rather, an action taken in such a situation will be upheld unless it has no “real or substantial relation” to protecting the public health or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).
Federal courts across the country have applied the Jacobson standard to actions taken by states to control the COVID-19 virus, and the vast majority have found those actions to be constitutional. Maine’s self-quarantine requirement easily passes this standard, and, even if the Jacobson standard did not apply, the self-quarantine requirement would nevertheless pass constitutional scrutiny. Plaintiffs are thus not likely to succeed on the merits, the “sine qua non” factor in deciding whether to issue a preliminary injunction. All the other relevant factors also support denying an injunction. Most notably, elimination of the self-quarantine requirement, at least at this time, would threaten the public health, and the plaintiffs’ desire to recreate and visit
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friends in other states without self-quarantining does not outweigh Maine’s interest in protecting its population. Plaintiffs’ motion should therefore be denied.1
FACTUAL BACKGROUND The 2019 Novel Coronavirus (COVID-19) is a respiratory illness caused by a coronavirus, known as SARS-CoV-2. Declaration of Nirav Dinesh Shah, M.D., J.D. (“Shah Decl.”) ¶ 9. The history of the COVID-19 outbreak, its devastating impact, and the state, national, and international response is set forth in this Court’s decision in Calvary Chapel of Bangor v. Mills, 2020 WL 2310913, at *1-4 (D. Me. May 9, 2020). See also Shah Decl. ¶¶ 10-12. Of note, as of 11:00 a.m. on May 25, 2020, there have been 2,074 confirmed cases in Maine, resulting in 78 deaths. Shah Decl. ¶ 12. Amid this public health crisis, scientists in the United States and around the world are working to understand the COVID-19 virus, but much remains unknown. The virus spreads, among other ways, through respiratory droplets produced when an infected person coughs, sneezes, or talks and through close personal contact, such as touching or shaking hands. Id. ¶ 13. The virus has an incubation period of up to 14 days, and a person can be infected and spread the virus during that entire time period without noticing any symptoms. Id. ¶ 15. This “asymptomatic transmission” makes control of COVID-19 very difficult, because individuals may transmit the disease before knowing they have it. Id. ¶ 16.2 It is clear that the COVID-19 virus is spreading very easily and sustainably between people. Id. ¶ 18. There is currently no vaccine or widespread
1 The plaintiffs include two corporations that operate campgrounds in Maine and a corporation that operates a restaurant serving campground customers. Complaint, ¶¶ 44-45. They will be referred to as the “Campground Plaintiffs.” The remaining plaintiffs are two individuals who reside in New Hampshire but would like to camp in Maine this summer and one individual who lives in Maine but would like to cross back and forth across the border for various reasons. They will be referred to as the “Individual Plaintiffs.” 2 According to a recent analysis by the United States Centers for Disease Control and Prevention, approximately 40% of all COVID-19 transmission can occur while individuals are asymptomatic and approximately 35% of all COVID-19 patients do not have symptoms at all. Id. ¶ 17.
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treatment for COVID-19. Id. ¶ 18.3 The most effective method of controlling the virus is to practice “physical distancing,” i.e., keeping appropriate space between oneself and others. Id. ¶ 22.
To prepare for and respond to COVID-19 in Maine and to implement measures to mitigate the spread of COVID-19, the Governor proclaimed a State of Civil Emergency To Protect Public Health on March 15, 2020. See Calvary Chapel, 2020 WL 2310913, *2.4 Subsequently, the Governor issued a series of Executive Orders and took other measures intended to control the spread of the COVID-19 virus and protect Maine’s health care system.5 The primary goal of the State’s management of this pandemic has been to a) contain the spread of the deadly virus in order to protect Maine citizens from acute sickness and death, and b) prevent Maine’s health care delivery system from being overwhelmed by an unrestrained pandemic. Declaration of Derek P. Langhauser (“Langhauser Decl.”) ¶ 7. The concern for the health care system arose from the inadequate supply of personal protective equipment that first responders, nurses, doctors and other front-line health care workers need, as well as a limited number of ventilators and intensive care unit beds required to treat seriously infected patients. Id. The Executive Orders and other measures taken to fight the virus were implemented progressively and timed to the rate and location of infection case increases in the State, changes in federal and state public health guidance as the scientific understanding of the virus has developed, and the actions of neighboring states whose own case rates could, by means of travel therefrom, affect Maine’s case rates. Id. ¶ 9.
3 One drug – remdesivir – may reduce the length of hospitalization for severely ill patients, but it does not appear to reduce mortality in a statistically significant manner. Id., ¶ 20. Further, it has not yet received full FDA approval and is in very short supply. Id., ¶¶ 20-21. 4 The Proclamation is available at https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inlinefiles/Proclamation%20of%20State%20of%20Civil%20Emergency%20To%20Further%20Protect%20Public%20He alth.pdf. 5 The orders are available at https://www.maine.gov/governor/mills/official_documents. To date, the Governor has issued more than 40 Executive Orders in response to the COVID-19 pandemic.
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A description of some of the Executive Orders and other measures taken by the State to combat COVID-19 is contained in paragraphs 10 and 11 of the Langhauser Declaration, and, for the sake of brevity, the State will not recite them all here. There are, though, a few measures worth highlighting: 1) on March 18, the Governor ordered all restaurants and bars statewide to close to dine-in customers and prohibited all gatherings of more than ten people (Executive Order 14); 2) on March 24, the Governor ordered all non-essential businesses and operations to close (Executive Order 19); and 3) on March 31, the Governor ordered Mainers to stay at home except for certain specified purposes (Executive Order 28). Id. ¶ 10(d), (f), (h).
Between March 31 and April 3, 2020, COVID-19 cases in the State increased from 303 to 432. Id. ¶ 10(k). Further, a number of municipalities (particularly coastal communities and areas with tourist attractions) expressed concerns about an influx of day and weekend visitors, as well as seasonal residents who would expedite their plans to return to Maine in order to escape from parts of the country (for example, Massachusetts and New York), with much higher infection rates. Id. ¶ 12. 6 Broader concerns were also expressed about the rapidly approaching tourist season. Last summer, Maine, with a population of just 1.3 million citizens, had approximately 22.1 million non-resident visits, with approximately half of those coming from regional neighbors Massachusetts, Connecticut, and New York, states with higher COVID-19 infection rates than Maine. Id. ¶ 13.
Given these concerns and case-related information available as of April 3,7 the Governor determined, as advised by the Maine Center for Disease Control and Prevention (“Maine CDC”),
6 There were also concerns that work-from-home orders issued by other states would induce even more people to come to Maine and increase the risk of the spread of COVID-19, since they would still be able to maintain their employment while here in a more rural and less populated state. Langhauser Decl. ¶ 12. 7 Other considerations that led to issuance of the Order were that 1) on March 28, 2020, due to extensive community transmission of COVID-19 in the states of New York, New Jersey and Connecticut, the United States Centers for Disease Control advised residents of those states to refrain from non-essential domestic travel for 14 days; 2) the President of the United States and his Coronavirus Task Force issued an advisory to limit travel between and among
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that the State needed to limit the introduction of new infections, not just address the risk of infection in the existing population in Maine. Id. ¶ 14. The additional measures were necessary to slow the spread of the COVID-19 virus and lessen the strain on Maine's health care system. Id. ¶ 14(a). Accordingly, on April 3, 2020, the Governor issued Executive Order 34, “An Order Establishing Quarantine Restrictions on Travelers Arriving in Maine.” Id. ¶ 10(k); ECF Doc. 3-6, PageID 69-72. Essentially, the Order requires all persons entering Maine (residents and nonresidents alike) to immediately self-quarantine for 14 days, except for persons engaging in certain “essential services” as defined in Executive Order 19. Id.8 A period of 14 days was selected because this is the average incubation period of the virus; so, if a person is not exhibiting symptoms after 14 days, it is less likely that the person is infected with the COVID-19 virus. Langhauser Decl. ¶ 16; Shah Decl. ¶ 29.
The Governor acts based on changing conditions and the best available information. Order 34 – the self-quarantine order – was set to expire on April 30, 2020, but it was extended to May 31, 2020, unless sooner amended, by Executive Order 49. See ECF Doc. 3-6, PageID 73-76.9 Order 49 explained that the “timing, pace and scope of any easing of current restrictions” would be guided by “three primary metrics:” 1) “a downward trajectory of reported influenza-like illnesses and COVID-like syndromic cases;: 2) “a downward trajectory of documented cases and newly hospitalized patients;” and 3) “the capacity of Maine's hospital systems to treat all patients without crisis care and the ability of the State to engage in a robust testing program.” Id. Conditions on the ground can change quickly. For example, on May 7, 2020, the Governor
certain states; and, 3) several states in the region began imposing their own quarantine and lodging restrictions in order to prevent the spread of COVID-19 from travel. Id., ¶ 13(b), (c), (d). 8 Plaintiffs wrongly assert that Order 34 “ban[s] all travel from certain regions.” PI Motion, at 2. Rather, the Order simply advises against persons coming to Maine from certain areas and “hot spots.” Langhauser Decl., ¶ 17. People are free to come to Maine from any place, so long as they self-quarantine. The Order simply expresses the expectation that people will exercise some common sense. 9 Order 49 also extended Orders 14, 19 and 28 to May 31. Id.
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announced a partnership with IDEXX Laboratories, Inc. to purchase enough of the company’s recently authorized COVID-19 testing kits to more than triple the State’s testing capacity. Langhauser Decl. ¶ 11(b). Use of this testing may facilitate a safer reopening. Id. At present, though, the self-quarantine requirement for those entering Maine remains in effect, and, for the reasons to be discussed, it should not be enjoined. Shah Decl. ¶ 44 (while the State continues to evaluate ways in which the self-quarantine requirement could be eased or eliminated, the requirement is currently “the best way to adequately protect the public health while still ensuring that certain essential services and operations can continue”).
ARGUMENT In considering whether to issue a preliminary injunction, trial courts must consider (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court's ruling on the public interest. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996). “The party seeking the preliminary injunction bears the burden of establishing that these four factors weigh in its favor.” Esso Standard Oil Co. (Puerto Rico) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006). “The sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). Here, Plaintiffs cannot establish any of the factors.
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I. Plaintiffs Are Not Likely to Succeed on the Merits Because the Self-Quarantine Requirement is Constitutional Under the Standard Set by the Supreme Court for State Action Taken to Curb a Public Health Threat. The Supreme Court has made clear that when a state is facing a public health emergency
and enacts measures to protect its residents, the measures are afforded great deference and the usual constitutional analysis does not apply. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), a city had an outbreak of smallpox, and it enacted a regulation requiring that, under threat of criminal penalties, all inhabitants be vaccinated. A person charged with violating the regulation challenged its constitutionality under the Fourteenth Amendment, arguing “that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.” Id. at 26.
The Supreme Court rejected the challenge, stating that the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Id. The Court further recognized that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. The Court held that a regulation intended to protect against such a threat would be struck down only if it has “no real or substantial relation” to its goal of protecting the public health or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31. Applying this test, the Court upheld the compulsory vaccination law, id. at 39, a measure more intrusive than Maine’s requirement that persons entering the state selfquarantine for 14 days.
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Across the country, federal courts have affirmed that the Jacobson test applies to measures imposed by states to protect their residents from the COVID-19 virus. This very Court applied Jacobson when a church challenged the Governor’s Executive Order limiting gatherings to no more than 10 people. Calvary Chapel, 2020 WL 2310913. The court recognized a state’s right to protect residents from an epidemic and stated that “while such an epidemic in ongoing, the ‘traditional tiers of constitutional scrutiny do not apply.’” Id. at *7 (quoting Cassell v. Snyders, 2020 WL 2112374, at *6 (N.D. Ill. May 3, 2020)). “During that temporary time and in those narrow contexts, Jacobson instructs that courts should only overturn state action when it lacks a ‘real or substantial relation to the protection of the public health’ or represents ‘a plain, palpable invasion of rights secured by the fundamental law.’” Id. at *7 (quoting Jacobson, 197 U.S. at 31). Applying this standard, the court found that the church was unlikely to prevail on its challenge to the gathering restriction.
The United States District Court for the District of Oregon likewise applied Jacobson in a challenge to executive orders restricting the operation of businesses. Save Our Oregon v. Brown, 2020 WL 2542861 (D. Or. May 19, 2020). In ruling on plaintiffs’ preliminary injunction motion, the court concluded that the “Plaintiffs’ federal constitutional claims [were] unlikely to succeed on the merits.” Id., at *2. After discussing Jacobson, the Court stated that it was “inclined to side with the chorus of other federal courts in pointing to Jacobson and rejecting similar constitutional claims brought by Plaintiffs challenging similar COVID-19 restrictions in other states.” Id. In Amato v. Elicker, 2020 WL 2542788 (D. Conn. May 19, 2020), plaintiffs similarly challenged various executive orders on constitutional grounds, including ones limiting the operation of bars and restaurants. The court recognized that under Jacobson, “states may ‘institute extraordinary measures to protect public health.’” Id., at *9. The court further stated that “while the power of
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state governments during an epidemic is, of course, not limitless,” “Jacobson requires that courts refrain from second-guessing state governments’ responses unless there is ‘no real or substantial relation’ between the actions and the public health and safety or the action is ‘beyond all question, a plain, palpable invasion of rights.’” Id., at *10 (quoting Jacobson, 197 U.S. at 31). The court denied the plaintiffs’ preliminary injunction motion. Id., at *13.
Numerous other courts (including at least two Courts of Appeals) have taken this same approach. See In re Rutledge, 956 F.3d 1018, 1027–1032 (8th Cir. 2020) (applying Jacobson standard to directive requiring postponement of all elective and non-emergency surgical procedures); In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020) (“The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’”); Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2468194, at *3 (N.D. Ill. May 13, 2020) (“[T]he COVID-19 pandemic qualifies as the type of public health crisis that Jacobson contemplated. That finding means that to have any likelihood of success on the merits plaintiffs must demonstrate either that the Order has no real or substantial relation to the public health crisis or that it is a plain, palpable invasion of their rights.”);10 Antietam Battlefield KOA v. Hogan, 2020 WL 2556496, at *7 (D. Md. May 20, 2020) (“But although there may be more than one reasonable way to respond to the COVID-19 outbreak, it is clear that the Governor’s orders have at least a real and substantial relation to protecting public health.”); SH3 Health Consulting, LLC v. Page, 2020 WL 2308444, at *1 (E.D. Mo. May 8, 2020) (“The Court’s limited
10 The plaintiffs in Elim appealed to the Seventh Circuit and moved for an injunction pending appeal. The court denied the motion, finding plaintiffs failed to show sufficient likelihood of success to warrant injunctive relief, and, citing Jacobson, noting that the challenged Executive Order “responds to an extraordinary public health emergency.” Elim Romanian Pentecostal Church v. Pritzker 2020 WL 2517093, at *1 (7th Cir. May 16, 2020).
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role of judicial review is not to assess the wisdom of the Orders, but to determine whether the Orders violate the law. . . . [T]he Court finds that they do not violate the Constitution because they have a real and substantial relation to the goal of stemming the tide of the public-health pandemic, and they are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’”); Cross Culture Christian Ctr. v. Newsom, 2020 WL 2121111, at *5 (E.D. Cal. May 5, 2020) (“But during public health crises, new considerations come to bear, and government officials must ask whether even fundamental rights must give way to a deeper need to control the spread of infectious disease and protect the lives of society's most vulnerable. Under these rare conditions, the judiciary must afford more deference to officials' informed efforts to advance public health—even when those measures encroach on otherwise protected conduct; even when thoughtful minds could disagree about how to best balance the scales.”); Gish v. Newsom, 2020 WL 1979970, at *5 (C.D. Cal. Apr. 23, 2020) (“In other words, during an emergency, traditional constitutional scrutiny does not apply.”); Berean Baptist Church v. Cooper, 2020 WL 2514313, at *6 (E.D.N.C. May 16, 2020) (stating that “Jacobson remains the lodestar in striking the balance between constitutional rights and public safety” but holding that order at issue did not meet the standard); Geller v. De Blasio, 2020 WL 2520711, at *3 (S.D.N.Y. May 18, 2020); McGhee v. City of Flagstaff, 2020 WL 2308479, at *5 (D. Ariz. May 8, 2020); Spell v. Edwards, 2020 WL 2509078, at *3-4 (M.D. La. May 15, 2020).11
In addition, the Supreme Court has recognized the broad powers of states when it comes to quarantines. In Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of Louisiana, 186 U.S. 380 (1902), a quarantine order that prohibited healthy passengers on a ship
11 In First Baptist Church v. Kelly, 2020 WL 1910021 (D. Kan. Apr. 18, 2020), the court held that Jacobson did “not provide the best framework” for evaluating an executive order restricting gatherings, but the court said that this was “based on the relatively unique circumstances” of the case at bar. Id. at *6. The unique circumstances were apparently the court’s conclusion that the restriction was not facially neutral but instead singled out religious assembly.
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from disembarking and entering communities that were experiencing disease outbreaks was challenged on Commerce Clause and Fourteenth Amendment Due Process grounds. Apparently, the quarantine’s purpose was not to stop the introduction of disease (which was already prevalent) but, presumably, to limit its spread by reducing the number of people who could potentially become infected.12 Maine seeks to do the same here: limit the spread of a prevalent disease by requiring individuals entering the state to quarantine for a short period of time linked to the incubation period of COVID-19. In rejecting the challenge in Compagnie, the Supreme Court stated:
That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question. Id. at 387. Given the broad deference given to state measures taken during a public health crisis, the self-quarantine requirement easily passes muster. First, it bears a “real or substantial relation” to the COVID-19 pandemic. There can be no dispute that the virus spreads through personal contact. Measures taken to limit the extent to which infected persons come into contact with others necessarily bear a real or substantial relation to the pandemic. Nor can there be any dispute that massive numbers of people come into Maine, and many of them are coming from areas with high rates of infection. The self-quarantine requirement ensures that those persons will not interact in the community until it can be demonstrated that they are likely free of the COVID-19 virus.
12 The lower court described the people entering the area as “added fuel” and the purpose of the quarantine thusly: “‘The object in view was to keep down, as far as possible, the number of persons to be brought within danger of contagion or infection, and by means of this reduction to accomplish the subsidence and suppression of the disease and the spread of the same.’” Compagnie Francaise, 186 U.S. at 385-86.
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Beyond limiting the spread of the virus, it reduces the possibility that Maine’s health care system will suddenly be inundated with a flood of new cases.
The plaintiffs’ arguments that the self-quarantine requirement is not sufficiently tailored to reducing the threat of the virus fail both as a matter of law and a matter of fact. Under Jacobson, the test is not strict scrutiny and a perfect fit is not necessary. Even so, the self-quarantine requirement is narrowly tailored to advancing the State’s interest in controlling the spread of COVID-19 and protecting Maine’s health care system. Plaintiffs assert that the quarantine restrictions sweep too broadly, but the options they propose are not reasonable alternatives. Barring entry of only those persons exhibiting symptoms would not be effective because a person can be infected with the virus (and thus able to infect others) for up to 14 days before experiencing symptoms. Shah Decl. ¶ 38. Certain symptoms of COVID-19 also may indicate a different condition. Id. ¶ 40. Screening out only people who have had “close contact” with an infected person is “not scientifically sound” because infected individuals frequently exhibit no symptoms, so people can easily be exposed without knowing it. Id. ¶ 39. Testing individuals for the presence of the virus currently is not a feasible alternative because there are not enough test kits and there is still scientific uncertainty about the accuracy of antibody-based tests. Id. ¶ 41.13 Allowing persons to bypass self-quarantine if they can document having had, and recovered from, COVID19 is not presently viable because there continues to be significant scientific uncertainty about whether individuals who have previously been infected with the virus develop sufficient immunity to prevent them from transmitting it to others. Id. ¶ 42. 14
13 As the supply of test kits increases and better information become available regarding accuracy, testing may become a substitute for, or a supplement to, self-quarantine. Id. 14 Allowing a person to self-quarantine in his home state and then come to Maine, as plaintiffs propose, is problematic for at least two reasons. First, there would be concerns about the reliability of a person’s representation that he selfquarantined for 14 days before coming here, especially from persons who travelled some distance to reach Maine and had to use restrooms, get food and access lodging along the way. Langhauser Decl. ¶ 22. Second, while to some extent the self-quarantine requirement depends on voluntary compliance, it is easier to verify a person’s claim that he self-
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Some of plaintiffs’ criticisms of the self-quarantine requirement are based on their
fundamental misunderstanding of its purpose. It is not to stop the COVID-19 virus from entering
Maine. As plaintiffs correctly point, PI Motion, 11-12, the virus is already here. Rather, its
purpose is to reduce additional introductions of the virus into Maine, limit new avenues of
transmission, and slow the overall spread of the disease. Shah Decl. ¶¶ 30, 33. It also helps prevent
an undue strain on Maine’s health care system. Id. ¶ 30. Maine had 22.1 million out-of-state visits
last summer with a health care system designed for 1.3 million. Id. ¶¶ 35-36. Maine has only 391
critical care hospital beds, 165 of which are currently available.15 Id. ¶ 36. The self-quarantine
requirement reduces the risk that a person who enters the state, whether a Maine resident or not,
could potentially (and unwittingly) transmit COVID-19 to others. Id. ¶ 37. Risk is minimized by
ensuring that the vast majority of persons who enter the state16 do not interact in the community
until it is more certain that they were not carrying the COVID-19 virus at the time of their arrival.
Id. Self-quarantine both controls the spread of the virus and reduces the possibility that Maine’s
health care system will be over-taxed by a sudden flood of new cases. Id.17
quarantined in Maine than to verify a person’s claim that he self-quarantined in his home state. Id. For example, if an out-of-state resident falsely claimed to have self-quarantined in Maine upon arrival, State officials could follow up by asking the person for the location where he allegedly self-quarantined. Id. If a person claimed to have selfquarantined at his home in another state, however, it would be all but impossible to verify that claim. Id. 15 Maine has a total of 318 conventional ventilators, 242 of which are currently unused. Shah Decl. ¶ 36. Maine has an additional 439 breathing machines that may have otherwise been used in an operating room but could be repurposed to provide ventilation to COVID-19 patients. Id. 16 The quarantine requirement has an exception for people coming into Maine to work at essential businesses and operations. See PageID 70. It was determined, though. that the risk from such people was relatively small. On the other hand, the risk from the millions of people who, in the absence of a quarantine rule, would enter the state for recreational purposes, to escape high-infection areas, or to travel to seasonal homes is significantly larger. Shah Decl., ¶ 34; Langhauser Decl., ¶ 20. Further, requiring essential workers to self-quarantine would interfere with the delivery of essential services, including, perhaps most notably, health care services. It also would have prevented out-of-state power line workers from helping to restore service after a recent late spring snowstorm. Further, essential workers will generally be supervised by their employers and their activities in the state will be more constrained than those of individuals coming here for recreational or other non-work-related reasons. 17 It may or may not make sense to require plaintiffs’ hypothetical “accidental tourist” who takes a wrong turn and briefly drives out of, and immediately back into, Maine to self-quarantine. However, as a matter of public health policy, it is impossible to craft a rule that can account for every unique situation that might arise. Shah Decl. ¶ 43. The goal was to develop a rule that would account for the vast majority of risk from travel into the state: the influx of risk from spring and summer visitors or other persons coming here from areas with higher infection rates or for
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Nor does the self-quarantine requirement constitute a “plain, palpable invasion” of any
constitutional right. As will be discussed below, the requirement does not implicate either the
right-to-travel or principles of due process, much less is it an obvious violation of those doctrines.
The requirement does not prohibit persons from traveling to or from Maine. It simply requires
that those entering the state self-quarantine for two weeks at a place of their own choosing. Far
from being a “plain” or “palpable” violation of the Constitution, the requirement is a sensible,
common-sense measure intended to protect the public from a deadly virus and ensure the stability
of Maine’s health care system.18
II. Plaintiffs Are Not Likely to Succeed on the Merits Even Under a Traditional Analysis Because the Self-Quarantine Requirement Violates Neither the Right-to-Travel Nor the Due Process Clause.
Even if the Jacobson standard did not apply, the self-quarantine requirement does not
implicate the constitutional right to interstate travel. Although the exact underpinning of the right
to travel is disputed,19 the Supreme Court has explained that there are three components of the
right to travel:
It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when
recreational and tourism purposes. Id.; Langhauser Decl., ¶ 20. The risk posed by such an influx is greater by orders of magnitude than that posed by hypothetical directionally challenged motorists. 18 Plaintiffs’ reliance on Roberts v. Neace, 2020 WL 2115358 (E.D. Ky. May 4, 2020) is misplaced. There, Kentucky’s Governor issued orders banning residents from leaving the state and requiring residents and non-residents entering the state to self-quarantine for 14 days. Id., at *1-2. First, Kentucky had in fact established an interstate travel ban— Maine has not. Second, the court did not so much as mention Jacobson (or any of many cases applying Jacobson to the COVID-19 pandemic) or otherwise acknowledge the different analysis that applies to measures addressing a public health emergency. Third, there is nothing in the opinion suggesting that Kentucky was facing a massive influx of outof-state visitors, and the court instead fixated on a few hypothetical effects, such as a person walking across the border and immediately returning. Id. at *5. Fourth, the court concluded that to enforce the quarantine, check points would have to be established at the border resulting in “[m]assive traffic jams,” and the state would need to set up “[q]uarantine facilities” to “accommodate the hundreds, if not thousands, of people who would have to be quarantined.” Id. Maine, however, is expecting visitors to comply with the quarantine requirement at an appropriate place of their own choosing. 19 See United States v. Guest, 383 U.S. 745, 758 (1966) (the right to travel “finds no explicit mention in the Constitution”); Attorney Gen. v. Soto-Lopez, 476 U.S. 898, 902-03 (1986) (identifying and describing possible textual sources in the Constitution for the right to travel).
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temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. Saenz v. Roe, 526 U.S. 489, 500 (1999). Plaintiffs do not commit to what particular component of the right to travel they are claiming the state has violated, PI Motion at 8-13, but none of these components is implicated by the self-quarantine requirement. The first component protects “the right to go from one place to another, including the right to cross state borders while en route.” Id. at 500. For example, a California statute criminalizing the entry of indigent persons into the state violated the fundamental right to travel. Edwards v. California, 314 U.S. 160, 168 (1941). Similarly, a Nevada statute that imposed a “tax upon the passenger for the privilege of leaving the State, or passing through it by the ordinary mode of passenger travel”20 was found to violate the constitutional right to travel. Crandall v. Nevada, 73 U.S. 35, 40 (1867). On the other hand, a statute that conditioned welfare benefits on a full year of residency in California did not implicate the first component of the right to travel because the statute did not create a barrier or obstacle to entry into the state. Saenz, 526 U.S. at 501. Here, the quarantine requirement imposes no barrier or obstacle to entry to or departure from the State like those the Supreme Court has found unlawful. Individuals are free to enter and leave Maine; it is only after they are here that they must self-quarantine before further roaming about the state. See Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277 (1993) (explaining a purely intrastate restriction on movement does not implicate the right of interstate travel). Nor are the second or third components of the right to travel implicated in this case. The second component, derived from the Privileges and Immunities Clause, bars “‘discrimination against citizens of other States where there is no substantial reason for the discrimination beyond
20 Plaintiffs have not asserted that they are attempting solely to cross Maine on their way to another destination.
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the mere fact that they are citizens of other States.’”21 Saenz, 526 U.S. at 502 (quoting Toomer v.
Witsell, 334 U.S. 385, 396 (1948)). The self-quarantine requirement does not discriminate
between Maine residents and out-of-state residents; all individuals who enter the State must
comply with the quarantine requirements. The third component, which prevents states from
denying a “newly arrived citizen . . . the same privileges and immunities enjoyed by other citizens
of the same State,” Saenz, 520 U.S. at 502, is not infringed because none of the plaintiffs alleges
an intent to change his or her residency. And, again, the quarantine requirement does not
distinguish between residents and non-residents – a Maine resident returning to the state must self-
quarantine to the same extent as a resident of another state.22
Even if the quarantine requirement did implicate the right-to-travel, it would survive strict
scrutiny. Protecting Maine’s population from the further spread of COVID-19 and preventing
Maine’s health care system from being overwhelmed are, without a doubt, compelling state
interests. See Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420, 429 (N.Y. 1989) (controlling
AIDS epidemic was compelling state interest). As is discussed above, the quarantine requirement
21 The Privileges and Immunities Clause applies only to protect non-residents from discrimination; the clause is not implicated when residents challenge their own state’s law. See Hawai’i Boating Ass’n v. Water Transp. Facilities Div., 651 F.2d 661, 666 (9th Cir. 1991). 22 Citing Attorney General v. Soto-Lopez, 476 U.S. 898, 903 (1986), plaintiffs argue that the right to travel is implicated because they have been deterred from traveling. For two reasons, this argument fails. First, Soto-Lopez predates Saenz, which clarified the three components of the right to travel. Those three components have guided subsequent right to travel cases. See, e.g., Connelly v. Steel Valley School Dist., 706 F.3d 209, 213-214 (3d Cir. 2013); Matsuo v. United States, 586 F.3d 1180, 1183-84 (9th Cir. 2009); United States v. Stevens, 578 F. Supp.2d 172, 185 (D. Me. 2008). Moreover, the cases the Soto-Lopez Court cited in support of the deterrence theory are Crandall, 73 U.S. at 35, where the state taxed departure from and travel through a state, and Shapiro v. Thompson, 394 U.S. 618 (1969), where the state conditioned welfare benefits on length of residency. These two cases fall squarely within the threecomponent framework of Saenz, and Soto-Lopez therefore should not be read as creating a fourth component based on “actual deterrence.”
Second, plaintiffs’ argument proves too much. Under their theory, any law that deterred or dissuaded a person from traveling to another state would implicate the right to travel. For example, Ms. Humiston could take umbrage with Maine’s sales tax law, see 36 M.R.S. § 1811 (imposing 5% sales tax on sales of tangible personal property), because it deters her from traveling here from New Hampshire, where there is no sales tax. It cannot be the case, though, that the sales tax law implicates the right to travel simply because it might actually deter some people from coming here.
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is narrowly tailored to that advancing those interests, and all of the alternatives proposed by plaintiffs are unworkable or ineffective at achieving the State’s goals.
Plaintiffs’ claim that the quarantine restrictions violate due process is equally flawed. PI Motion at 14-17. First, it appears that only the Individual Plaintiffs are making this argument, and not the Campground Plaintiffs (which, apparently, are currently operating). Second, the plaintiffs do not commit to whether they are claiming the quarantine requirement violates substantive due process or procedural due process. Instead, they present a moving target based on quotations of broad legal principles without engaging in any real analysis. The State and the Court are thus left to guess at the basis for the Individual Plaintiffs’ due process claims.
For example, plaintiffs seem to claim that they have been denied due process because the quarantine requirements exceed the State’s police power. PI Motion at 15-16. As explained above, this argument is answered by Jacobson and its progeny, which make clear that states have broad powers to protect the public amidst a health crisis. Plaintiffs also seem to claim they have been denied procedural due process because there is insufficient guidance on what it means to selfquarantine. PI Motion at 16. It is difficult to understand what about self-quarantining for fourteen days the plaintiffs do not understand. And, ironically, plaintiffs themselves attached to their filing the Maine CDC guidance on self-quarantine (ECF Doc.3-6, PageID42-63), belying their own argument. Plaintiffs argue that they were not allowed to provide pre-adoption input or comment on the guidance under the Maine Administrative Procedures Act, PI Motion at 16, but the Governor is not an “agency” for purposes of that Act. 5 M.R.S. § 8002(2). And, in any event, the emergency powers provided by statute expressly permit the Governor to suspend the usual procedures “for the conduct of state business” if “strict compliance . . . would hinder or delay any necessary action in coping with the emergency.” 37-B M.R.S. § 742(1)(C)(1). Plaintiffs glaringly ignore the rapid
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onset and spread of COVID-19 and the urgent need to act quickly to protect Maine’s population. See Friends of Danny DeVito v Wolf, 2020 WL 1847100, at *19 (Pa. Apr. 13, 2020); see also Morrissey v. Brewer, 408 U.S. 471, 481 (1972 (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”). III. Even If Plaintiffs Had Established a Likelihood of Success, the Remaining Factors
Support Denying an Injunction. The plaintiffs cannot establish irreparable harm, that the balance of hardships tips in their favor, or that the public interest warrants an injunction. As an initial matter, although the State has not yet moved to dismiss claims brought by the Campground Plaintiffs, those plaintiffs do not have standing to claim a right to travel and any harm they allege should thus not be considered in ruling on the preliminary injunction motion. The campgrounds obviously do not “travel,” so it is impossible to see how they could have any right to travel, and plaintiffs cite no case supporting such a notion. To the contrary, the right to travel is a “personal right, guaranteed by the Constitution to us all.” Saenz, 520 U.S. at 498 (1999) (emphasis added, internal quotation marks omitted); see also Paul v. Virginia, 75 U.S. 168, 178 (1868) (noting that corporations have never been considered citizens within the meaning of the Privileges and Immunities Clause). Moreover, the Campground Plaintiffs do not have standing to assert the rights of their customers. Generally, litigants are barred “from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509 (1975). There are “limited exceptions” to this prohibition, but “three important criteria” must be satisfied: The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute, the litigant must have a close relation to the third party, and there must exist some hindrance to the third party's ability to protect his or her own interests
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Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citations omitted); see also Eulitt v. Maine, Dept. of Educ., 386 F.3d 344, 351 (1st Cir. 2004). Here, there is no hindrance to the campgrounds’ customers asserting their own interests. Indeed, two plaintiffs (Curtis Bonnell and Dolores Humiston) are, in fact, campground customers bringing claims in their own right.
Given that the Campground Plaintiffs do not have standing, the remaining factors weigh against an injunction as measured against the impact on the Individual Plaintiffs. One plaintiff – James Boisvert – lives in Maine and wants to freely go in and out of the state “to recreate, associate with friends, visit businesses, and simply take trips through New Hampshire for a variety of purposes.” Complaint, ¶ 52. Curtis Bonnell and Dolores Humiston live in New Hampshire and would like to camp in Maine on weekends. Bonnell Decl., ¶¶ 3-4; Humiston Decl., ¶ 3-4. It is impossible to see how any of these plaintiffs would suffer irreparable harm if, like so many others, they were required to temporarily put their summer plans on hold. And, even if this did constitute irreparable harm, it must be weighed against the balance of the hardships and the public interest. Here, Maine, like the rest of the world, is facing a virtually unprecedented public health emergency:
The State is managing an extraordinary array of issues, and it has responded to the challenges raised by COVID-19 by establishing uniform standards and restrictions that are based on evolving scientific evidence. Governor Mills has laid out a path for organizations to seek to ease restrictions. Upsetting the careful balance being drawn by Maine’s Governor at this time would have an adverse effect on the public interest. Calvary Chapel, 2020 WL 2310913, *10. The plaintiffs should not be permitted to interfere with the careful, medically based approach taken by Maine’s Governor, and their motion for a preliminary injunction should be denied.
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Dated: May 25, 2020

AARON M. FREY

Attorney General

/s/ Christopher C. Taub Christopher C. Taub, Dep. Atty. Gen. Christopher.C.Taub@maine.gov Kimberly Patwardhan, Asst. Atty. Gen. Kimberly.Patwardhan @maine.gov Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8800 Fax (207) 287-3145

CERTIFICATE OF SERVICE

I hereby certify that on this, the 25th day of May, 2020, I electronically filed the above

document with the Clerk of Court using the CM/ECF system which will send notification of such

filing to the following:

GENE R. LIBBY glibby@lokllc.com

KEITH P. RICHARD krichard@lokllc.com

TYLER J. SMITH tsmith@lokllc.com

/s/ Christopher C. Taub CHRISTOPHER C. TAUB Deputy Attorney General Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8800 Fax (207) 287-3145

21

 
 Case 2:20-cv-00176-LEW Document 19 Filed 05/29/20 Page 1 of 12 PageID #: 212

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

BAYLEY’S CAMPGROUND, INC, d/b/a BAYLEY’S CAMPING RESORT, et al., Plaintiffs,

v.

CIVIL ACTION NO.: 2:20-cv-00176-LEW

JANET MILLS, in her official capacity as the Governor of the State of Maine, Defendant.

STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES The United States of America respectfully files this Statement of Interest under 28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United States in a suit pending in a court of the United States.” The United States has a substantial interest in the preservation of its citizens’ constitutional rights, including the guarantee that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const., art. IV, § 2. Especially in the midst of the COVID-19 pandemic, the United States also has a strong interest in ensuring the development and maintenance of the best possible publichealth strategies to combat the virus and protect the people of the United States from harm. This case raises issues of national public importance regarding the interplay between the government’s compelling interest in protecting the public and citizens’ constitutional right to be free from unjustified discrimination on the basis of state residency.
INTRODUCTION In the midst of the COVID-19 pandemic, the state and federal governments have a shared interest in promoting the best possible public-health strategies to combat the virus to protect the people of the United States from harm. But that interest does not justify government restrictions
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that violate the Constitution. Indeed, action that infringes upon constitutional rights is likely to erode public confidence in, and compliance with, legitimate efforts taken to address the COVID19 pandemic.
Here, Maine likely has transgressed the Constitution’s limits by discriminating between Maine residents and out-of-state residents with respect to the ability to patronize campgrounds and RV parks within the State. Residents from outside Maine must self-quarantine for 14 days before they can enjoy these facilities, while Mainers who have not ventured outside the State may frequent them at any time. That is true regardless of whether the Maine resident has recently come in contact with others suffering from COVID-19 or whether the out-of-stater hails from an area relatively unscathed by the pandemic (such as nearby Vermont) or a hotspot (such as New York City). And this self-quarantine requirement has caused real harm for Maine’s campground businesses, at a time when Americans most need their States to support efforts to reopen businesses in a manner consistent with public health.
The Constitution does not permit the discriminatory treatment challenged in this case. Although Maine may adopt reasonable measures to protect its residents from the COVID-19 pandemic, it cannot discriminate between Mainers and other U.S. citizens in this context unless that distinction is substantially related to ensuring public safety. Because the discrimination here is insufficiently tailored to that objective, it cannot be enforced under Article IV’s Privileges and Immunities Clause.
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BACKGROUND1 On April 3, 2020, the Governor of Maine issued Executive Order 34 FY 19/20, which required the closure of all lodging operations within the State, including campgrounds and RV parks. Executive Order 34 FY 19/20 § I.5. The Order also compels “any person, resident or nonresident, traveling into Maine” to “immediately self-quarantine for 14 days.” Id. § I.1. Anyone who violates the Order may face up to six months in jail and a $1,000 fine. Id. § III. The Order contains an exception to the self-quarantine requirement, however, for anyone engaged in “essential services” as specified in Executive Order 19 FY 19/20, id. § I.1, which sets forth a lengthy list of occupations ranging from “legal, business, professional, environmental permitting and insurance services” to “fishing and aquaculture” and “forest products,” Executive Order 19 FY 19/20 § II.B.2. On April 29, the Governor issued Executive Order 49 FY 19/20, which incorporates a “Restarting Plan,” available online at https://www.maine.gov/covid19/restartingmaine. The Restarting Plan provides that the State’s “Campgrounds/RV parks” will be “[o]pen to Maine residents only on May 22” and “[o]pen to out-of-state residents who have completed quarantine guidelines on June 1.” Maine’s self-quarantine requirement has contributed to the significant economic harm being suffered by campground businesses that rely on out-of-state patrons each summer for their income. For example, the yearly revenue for Little Ossipee Campground, a small family business in Waterboro, has fallen by over $94,000. PI Mot. 6. Similarly, Bayley’s Campground has
1 The United States submits this statement of interest based on the facts alleged in the complaint and the preliminary-injunction briefs and reflected in the accompanying exhibits and publicly available sources.
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received over 700 reservation cancellations, refunded over $153,000 in reservation fees, and lost over $260,000 in revenue. Id. at 5.
These businesses, along with New Hampshire residents who wish to enjoy Bayley’s Campground this summer (and others), brought a constitutional challenge on May 15 against various aspects of the Governor’s Orders. According to plaintiffs, requiring only out-of-state residents to self-quarantine before frequenting campgrounds in Maine violates the constitutional right to interstate travel. The same day, plaintiffs moved for an expedited preliminary injunction that would allow, among other things, out-of-state residents to frequent Maine’s campgrounds on the same terms as Mainers. The Governor filed an opposition to the motion on May 25.
ARGUMENT Maine’s Discrimination Against Out-Of-State Residents With Respect To Campgrounds
Likely Violates Article IV’s Privileges And Immunities Clause. A. The Supreme Court has held that the Constitution protects a right to travel from State to State. See Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1868). This right to travel consists of “three different components”: (1) an implied right “to enter and to leave” a State, (2) an express right, guaranteed by the Privileges and Immunities Clause of Article IV, “to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” and (3) an express right, guaranteed by the Privileges or Immunities Clause of the Fourteenth Amendment, to “become a citizen of any State.” Saenz v. Roe, 526 U.S. 489, 500-03 (1999) (citation and internal quotation marks omitted). This case involves the second component. The Privileges and Immunities Clause of Article IV guarantees that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. Const., art. IV, § 2. As the Supreme Court has explained, this Clause “was designed to insure to a citizen of State A who ventures into State B the same
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privileges which the citizens of State B enjoy.” Toomer v. Witsell, 334 U.S. 385, 395 (1948); see also Saenz, 526 U.S. at 502 (noting that the Clause provides “protections for nonresidents who enter a State whether to obtain employment, to procure medical services, or even to engage in commercial shrimp fishing” (citations omitted)).
In this case, the Governor’s Restarting Plan provides that “Campgrounds/RV parks” are open to all “Maine residents only on May 22” and to those “out-of-state residents who have completed quarantine guidelines on June 1.” Restarting Plan, supra. Accordingly, a New Hampshire resident who self-quarantines for 14 days within his home in the Granite State, for instance, must undergo an additional quarantine upon arriving in Maine before he can patronize plaintiffs’ campgrounds. See PI Opp. 13 n.14. By contrast, these campgrounds remain open to any Maine resident, whether or not he has self-quarantined within the last 14 days or ever, so long as he has not recently ventured outside the State. And it is unclear whether even “out-of-state residents” who entered Maine before the Governor issued the self-quarantine requirement and have remained there since (to the extent such individuals exist) must nevertheless “quarantine” to enjoy plaintiffs’ campgrounds.
The fact that the Governor’s orders also burden some Maine residents—namely, those who have recently traveled outside the State—does not render the Privileges and Immunities Clause irrelevant. To the contrary, in addressing California regulations that treated milk differently depending on whether it originated from outside or inside the State, the Supreme Court held that the “absence of an express statement in the [challenged] laws and regulations identifying out-ofstate citizenship as a basis for disparate treatment is not a sufficient basis for rejecting” a claim under this Clause. Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003); cf. United Bldg. & Const. Trades Council of Camden Cty. & Vicinity v. Mayor & Council of City of Camden, 465 U.S. 208,
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217-18 (1984) (ordinance discriminating on the basis of municipal residency “is not immune from constitutional review at the behest of out-of-state residents merely because some in-state residents are similarly disadvantaged”). As the Court explained, in Chalker v. Birmingham & Northwestern Railroad Co., 249 U.S. 522 (1919), it “held that a Tennessee tax imposed on a citizen and resident of Alabama for engaging in the business of constructing a railroad in Tennessee violated the Privileges and Immunities Clause” even though “[t]he tax did not on its face draw any distinction based on citizenship or residence.” Hillside Dairy, 539 U.S. at 67. But because the tax “impose[d] a higher rate on persons who had their principal offices out of State,” and because “‘the chief office of an individual is commonly in the State of which he is a citizen,’” the Court “concluded that the practical effect of the provision was discriminatory.” Id. (citation omitted); cf. Healy v. Beer Inst., 491 U.S. 324, 336 (1989) (state law may be invalid under the Dormant Commerce Clause in some circumstances based on its “practical effect” alone). Although the Supreme Court reserved the question whether “Chalker should be interpreted as merely applying the Clause to classifications that are but proxies for differential treatment against out-of-state residents, or as prohibiting any classification with the practical effect of discriminating against such residents,” either of those readings arguably describe the classification here. Hillside Dairy, 539 U.S. at 67. For present purposes, a classification on the basis of entry into a State—whether applied to milk or people— appears materially indistinguishable from a classification on the basis of the State where one’s chief office is located.
To be sure, the Privileges and Immunities Clause “is not an absolute.” Toomer, 334 U.S. at 396. It “does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.” Supreme Court of New Hampshire v.
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Piper, 470 U.S. 274, 284 (1985); see, e.g., Saenz, 526 U.S. at 502 (“There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, or to enroll in the state university” (citations omitted)). And in considering whether the discrimination here is sufficiently tailored, the Court should not ignore the context of the COVID-19 pandemic. The Constitution does not hobble States from taking necessary, temporary measures—including quarantines—to meet a genuine emergency. See Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905) (observing that “[a]n American citizen arriving at an American port” on a ship that had cases of yellow fever “may yet, in some circumstances, be held in quarantine against his will”); Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 397 (1902) (upholding Louisiana’s quarantine of healthy passengers aboard a vessel during an outbreak of yellow fever against a Fourteenth Amendment challenge).
But even during a pandemic, state actions undertaken in service of the public health cannot be divorced from that end and cannot clearly infringe constitutional rights. Thus, “if a statute purporting to have been enacted to promote the public health, the public moral or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobson, 197 U.S. at 31. At a minimum, state action cannot be “exercised in particular circumstances and in reference to particular persons” in “an arbitrary, unreasonable manner.” Id. at 28.
B. At least based on the evidence and argument presented thus far, Maine’s discrimination against out-of-state residents does not appear sufficiently tailored to ensuring public safety. Indeed, a federal court recently held that Kentucky travel restrictions issued in the wake of the COVID-19 pandemic requiring both Kentucky and out-of-state residents who traveled into the
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Commonwealth to self-quarantine for 14 days impermissibly infringed on the right to interstate travel because its restrictions were inadequately “tailored to achieve the government’s purpose.” Roberts v. Neace, --- F. Supp. 3d ---, No. 2:20CV054 (WOB-CJS), 2020 WL 2115358, at *5 (E.D. Ky. May 4, 2020). The same is true here.
Take overinclusivity first. See Piper, 470 U.S. at 285 n.19 (holding that a “markedly overinclusive” state residency requirement “does not bear a substantial relationship to the State’s objective”). It is unclear why the Governor requires every out-of-state resident to self-quarantine for 14 days before patronizing plaintiffs’ campgrounds. Had Maine imposed such a burden only on residents from COVID-19 hot spots, such as New York City, this might be a different case. But Maine requires travelers from every corner of the Union to quarantine themselves upon arrival, even if they hail from jurisdictions (such as nearby Vermont) that have fewer confirmed cases of COVID-19—either as an absolute matter or per capita—than Maine does. See CDC, Coronavirus Disease 2019 (COVID-19), Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited May 28, 2020). In fact, even if non-residents self-quarantine for 14 days within their own States, the Governor will not allow them to patronize campgrounds without self-quarantining for an additional fortnight within Maine. See PI Opp. 13 n.14. It is not at all obvious why a 14-day self-quarantine in a New Hampshire home, for instance, is any less effective in reducing the spread of COVID-19 than undergoing the same isolation in a house in Maine. Put simply, the mere fact that a traveler has recently been outside Maine is not a good proxy for the risk that he will spread COVID-19.
Conversely, the Governor permits every Maine resident who has stayed within state lines to patronize plaintiffs’ campgrounds. It does not matter whether the resident comes from, or has traveled through, one of the four Maine counties where community transmission of COVID-19
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has been established or the twelve where it has not. See Office of Governor Janet T. Mills, Governor Mills Introduces Rural Reopening Plan (May 8, 2020) (discussing locations of community transmission in Maine), https://www.maine.gov/governor/mills/news/governor-millsintroduces-rural-reopening-plan-2020-05-08. Maine residents who have stayed within the State do not have to self-quarantine for 14 days, certify they have avoided contact with others with COVID-19, undergo temperature screenings, or take any other precautionary measures in order to enjoy plaintiffs’ campgrounds. The “underinclusive” nature of Maine’s regime is another strike against it under the Constitution. Piper, 470 U.S. at 285 n.19.
Adding to the underinclusivity is the fact that non-residents may forgo self-quarantining to engage in “essential services” that appear to be equally as risky as camping, if not more so. As far as public safety goes, it is unclear why out-of-state residents may enter Maine to engage in any “legal, business, professional, environmental permitting and insurance services,” for example, but not to patronize a campground or RV park. Executive Order 19 FY 19/20 § II.B.2. If Maine wants to prevent the spread of COVID-19, one would think it would start by preventing outsiders from attending a boardroom meeting, not from pitching a tent.
Moreover, Maine could use less restrictive means to advance its interest in protecting public safety. See Piper, 470 U.S. at 284 & n.17 (explaining that when “deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means” and that “the State may be required to achieve its legitimate goals without unnecessarily discriminating against nonresidents”). Notably, the individual plaintiffs here could have already self-quarantined for 14 days in their New Hampshire residences before traveling in their campers to their desired campground. Traveling in their campers from their homes in Meredith and Salem, New Hampshire, to Bayley’s Campground in
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Case 2:20-cv-00176-LEW Document 19 Filed 05/29/20 Page 10 of 12 PageID #: 221 Scarborough, Maine, see Compl. ¶¶ 5-6, these travelers presumably would not have “to use restrooms, get food and access lodging along the way,” Opp. 13 n.14. Nor is it clear why “verify[ing]” their claim that they self-quarantined in New Hampshire would be any harder than verifying the claim that they did so upon arriving in Maine. Id. It is not as if Maine officials are engaging in a two-week surveillance of any out-of-state resident who self-quarantines upon arrival; indeed, the Governor admits that the “self-quarantine requirement depends on voluntary compliance.” Id. And there is little reason to think out-of-state residents will be any less compliant or truthful than Mainers. Cf. Piper, 470 U.S. at 285-86 (rejecting New Hampshire’s suggestion “that a nonresident lawyer will conduct his practice in a dishonest manner”).
In short, while Maine may take reasonable steps to protect public safety during the COVID19 pandemic, the insufficiently tailored discrimination against out-of-state residents at issue here requires a more compelling justification than the ones the State has offered so far.
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CONCLUSION The Court should hold that Maine’s discrimination against out-of-state residents likely violates Article IV’s Privileges and Immunities Clause.2
Respectfully submitted, ERIC S. DREIBAND Assistant Attorney General HALSEY B. FRANK United States Attorney ALEXANDER V. MAUGERI Deputy Assistant Attorney General /s/ Alexander V. Maugeri ALEXANDER V. MAUGERI Deputy Assistant Attorney General Department of Justice Civil Rights Division Office of the Assistant
Attorney General Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 Telephone: (202) 598-9601 Facsimile: (202) 514-8490 Alexander.Maugeri@usdoj.gov Counsel for the United States of America
2 The United States does not take a position at this time on whether plaintiffs have satisfied the remaining factors necessary for a preliminary injunction.
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CERTIFICATE OF SERVICE I certify that on May 29, 2020, I electronically filed the foregoing STATEMENT OF INTEREST ON BEHALF OF THE UNITED STATES with the Clerk of the Court for the United States District Court District of Maine by using the appellate CM/ECF system. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ Alexander V. Maugeri ALEXANDER V. MAUGERI Deputy Assistant Attorney General

 
 Case 2:20-cv-00176-LEW Document 20 Filed 05/29/20 Page 1 of 28 PageID #: 224

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

BAYLEY’S CAMPGROUND INC., )

FKT RESORT MANAGEMENT LLC, )

FKT BAYLEY LIMITED

)

PARTNERSHIP, DMJ PARKS LLC, )

CURTIS BONNELL, DOLORES

)

HUMISTON, and JAMES BOISVERT, )

)

Plaintiffs,

)

)

v.

)

)

JANET MILLS,

)

)

Defendant.

)

No. 2:20-cv-00176-LEW

ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION In response to the nationwide spread of Novel Coronavirus 2019, Governor Janet
Mills, like many other governors around the country, has issued a series of executive orders designed to slow the rate of infection. One aspect of Governor Mills’ executive orders is a warning to people from away that, unless they own or can rent property in Maine where they can quarantine themselves for 14 days, they will find no shelter here. Meanwhile, the Governor has reopened hotels, inns, and campgrounds to Maine traffic, meaning members of the traveling public who – supposedly – have already completed a 14-day quarantine inside Maine.

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In this action, a group of in-state businesses and out-of-state individuals1 who want to provide and/or access Maine lodging and campground facilities, contend the Governor cannot impose restrictions that deprive non-Mainers of their fundamental right to travel and participate in the commerce that currently is available to Mainers. Given this focus, the action does not threaten to set aside the entire body of executive measures introduced by Governor Mills and her aides, though, if successful, it would kick open the doors to the State’s tourist season, unless the Governor modifies her executive orders to restrict lodging and campground activity in ways that do not have the practical effect of discriminating against people from away.
Following a briefing cycle agreed to by the parties,2 the matter is now before the Court, not on the ultimate merits, but on a motion for preliminary injunction.
BACKGROUND For present purposes, the salient facts are as follows. Beginning on April 3, 2020, Governor Mills imposed an executive order, pursuant to powers vested in her under Title 37-B of the Maine Revised Statutes, Chapter 13, stating that all lodging operations must close as non-essential businesses, subject to certain enumerated exceptions. Executive Order 34. The Order also imposed a self-quarantine requirement on all persons entering the State of Maine. Specifically, as part of the larger mission “[t]o preserve the public health and safety, to ensure the public health and health delivery system are capable of
1 This case also includes a claim by a Maine resident who wants to travel freely out of Maine and back into Maine, without having to self-quarantine for 14 days every time he returns to Maine. 2 After the parties filed their briefs the United States filed a Statement of Interest under 28 U.S.C. § 517 in support of the Plaintiffs. ECF No. 19. I have reviewed the Government’s filing as part of my decision in this case.
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serving all, and to help protect those at the highest risk and vulnerability,” the Order required that “any person, resident or nonresident, traveling into Maine must immediately self-quarantine for 14 days or for the balance of 14 days dating from the day of arrival, except when engaging in essential services.”3
Violations of Executive Order 34 are punishable as a Class E crime, which carries a penalty of up to six months in jail and a $1,000 fine. Relevant to businesses that provide lodging and campground facilities, Executive Order 34 “may be enforced by any governmental department or official that regulates, licenses, permits or otherwise authorizes the operations of occupancy of buildings, parks and campgrounds[,]” and a violation of the Order “may be construed to be a violation of any such license, permit or other authorization to which pertinent penalties may be assessed.”
On April 29, 2020, Governor Mills issued Executive Order 49, which extended the effective dates of Executive Order 34 through May 31, 2020. Executive Order 49 also instituted a “Restarting Plan” to govern the easing of COVID-related restrictions. Governor Mills delegated implementation of the plan to the Department of Economic and
3 The Order goes on to dissuade travelers from certain regions from coming to Maine: Visitors are instructed not to travel to Maine if they are displaying symptoms of COVID19, and are advised not to travel to Maine if they are travelling from cities and regions identified as COVID-19 ‘hot spots,’ including, among others, the cities of Detroit, Chicago and New York City. In addition, residents of the States of New York, New Jersey and Connecticut should refrain from travel to Maine in strict compliance with USCDC travel guidance issued Saturday, March 28, 2020 and any subsequent travel guidance that may be issued during the pendency of this Order.”
Executive Order 34 § 1(4). 3

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Community Development, an agency headed by Commissioner Heather Johnson. The Restarting Plan sets out four stages for reopening Maine’s economy.
The first stage, extending through May 31, “contemplates a continued . . . 14-day quarantine on people entering Maine[,]” and identifies several businesses that may reopen, so long as they comply with detailed checklists. Lodging operations are not among the businesses that may re-open during Stage 1.
The second stage – described as “June” – “contemplates a continued . . . 14-day quarantine on people entering Maine.” Stage two provides that lodging operations and Campgrounds/RV parks may “[o]pen to Maine residents and out-of-state residents who have completed quarantine guidelines.” The stage two “checklist” for Campgrounds provides, among other things, “[g]uest visitation restricted to Maine residents and out of state visitors who have met the 14-day quarantine requirement at this time per executive order.”
In the third contemplated stage – “July-August” – the 14-day quarantine continues “on people entering Maine.” The stage-three list of openings includes, “[l]odging, such as hotels, campgrounds, summer camps, or RV parks for Maine residents and visitors.”
Separate and apart from the quarantine provision, on May 8, 2020, the Governor announced a “Rural Reopening Plan” that will apply in Maine’s twelve “rural” counties. It orders that “retail stores and restaurants in Aroostook, Piscataquis, Washington, Hancock, Somerset, Franklin, Oxford, Kennebec, Waldo, Knox, Lincoln, and Sagadahoc counties will be permitted to open in-store and dine-in service with enhanced safety precautions,” and that remote campsites and sporting camps will also be permitted to
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reopen “with public health safeguards” in place. The Rural Reopening Plan does not apply to York, Cumberland, Androscoggin, or Penobscot counties.
* Bayley’s Campground, Inc., d/b/a Bayley’s Camping Resort, is a corporation organized under the laws of the State of Maine, with a principal place of business in Scarborough. FKT Resort Management, LLC is a limited liability company organized under the laws of the State of Maine, with a principal place of business in Scarborough, Maine, and the management entity of Little River Bar & Grille and the Seaside Square Café. FKT Bayley Limited Partnership is a limited partnership organized under the laws of the State of Maine, with a principal place of business in Scarborough. DMJ Parks LLC, d/b/a Little Ossipee Campground, is a limited liability company organized under the laws of the State of Maine, with a principal place of business in Waterboro. The KKT and DMJ entities want the quarantine lifted so they can cater to a traveling public that includes folks from away who would like to migrate through Maine for vacation purposes. Curtis Bonnell is an individual who resides in Salem, New Hampshire. Mr. Bonnell and his wife traditionally spend their weekends at Bayley’s Camping Resort in Scarborough, “throughout the camping season.” Bonnell Decl. ¶ 4. He reports that both he and his wife have already contracted and recovered from COVID-19 infection. Presuming to be “low risk,” Mr. Bonnell objects to the lack of any “process to be heard or present evidence to establish they should either be exempted or not subject to prosecution.” Id. ¶ 9.
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Dolores Humiston is a school teacher who resides in Meredith, New Hampshire. She has been teaching from home for some time now and since March 26, 2020, she has observed precautions consistent with those imposed on Maine residents by the executive orders. She has “not displayed any symptoms” and, to her knowledge, does not have “the COVID-19 disease.” Humiston Decl. ¶ 9. But for the executive orders, she would use her camper every weekend until the school year ends, and then spend the summer at, Bayley’s Campground.
James Boisvert is an individual who resides in Scarborough. He also owns a home in Venice, Florida, where he has been staying from May 18 through May 29. Mr. Boisvert also has friends in New Hampshire he likes to visit. He thinks he should be able to pursue some process “to challenge or appeal any enforcement action taken against me if I elect not to quarantine upon my return to Maine.” Boisvert Decl. ¶ 11. He states, “I travel observing social distancing and CDC guidance and recommendations.” Id. ¶ 8.
Together, these entities and individuals (hereafter, “Plaintiffs”) challenge the summer-long application of the 14-day quarantine requirement and the Rural Reopening Plan, which they maintain are unlawful restrictions on interstate travel. Compl. Count 1. Plaintiffs also contend the 14-day quarantine is unconstitutional because it deprives all citizens of a fundamental freedom without due process of law, meaning specifically, without regard to the existence of legitimate grounds to conclude that a given person presents an actual risk to public health. Compl. Count 2. Finally, Plaintiffs challenge the Rural Reopening Plan as a violation of due process and equal protection because it
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discriminates – arbitrarily they say – in favor of businesses in rural counties. Compl. Count 3.
* Governor Mills asks that the traveling public consider the circumstances before passing judgment on the wisdom of the 14-day quarantine and Rural Reopening Plan. Her opposition to the motion for preliminary injunction relies on the Declaration of Nirav Dinesh Shah, M.D., J.D., Director of the Maine Center for Disease Control and Prevention, and the Declaration of Derek Langhauser, Chief Legal Counsel to the Governor, who, together with Deputy Legal Counsel Linda Pistner, is the “principal author[] of the Governor’s emergency executive orders.” Langhauser Decl. ¶ 3. The following statistics are drawn from the Governor’s May 25 submission; they lay out the facts as construed by the Governor and are not reflective of developments since that date. On January 31, 2020, the United States Department of Health and Human Services determined that as of January 27, 2020, the COVID-19 virus constituted a nationwide public health emergency. As of May 25, the United States tolled approximately 98,000 deaths from COVID-19, while Maine experienced 2,074 total confirmed cases and 78 deaths. The COVID-19 virus has an incubation period of up to 14 days and a person can be infected and spread the virus during that entire period without noticing any symptoms. The possibility of what is known as “asymptomatic transmission” makes control of COVID-19 challenging, because individuals may transmit the disease before knowing they may have it. Approximately 40% of all COVID-19 transmission can occur while individuals are
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asymptomatic and approximately 35% of all COVID-19 patients do not have symptoms at all.
There is currently no vaccine for COVID-19, and it may be at least one year before a vaccine can be developed, and even longer until it will become widely available. In the absence of a vaccine or widespread treatment, one prevalent method of controlling the virus is to practice “social distancing,” also referred to as “physical distancing.” This means keeping appropriate space between oneself and others. A critical strategy in combatting the COVID-19 virus is to slow its spread by limiting the extent to which persons come in contact with one another.
Fourteen days was selected as the quarantine period because fourteen days is understood to be the average incubation period for the COVID-19 virus. If a person is not exhibiting any symptoms fourteen days after entering the state, it is unlikely that he or she was infected with the virus at the time of entry. The quarantine requirement is intended to both reduce the spread of the COVID-19 virus in Maine and reduce and/or prevent an undue strain on Maine’s health care system. The quarantine requirement is intended to reduce the risk posed by a large influx of people entering Maine during the summer vacation season. Specifically, the quarantine is intended to address the risks posed by the millions of individuals entering the state to recreate, travel to seasonal homes, or escape from areas with high infection rates.
When the quarantine requirement issued, and continuing to this day, nearby states, including Massachusetts and New York, have much higher infection rates than Maine. In the absence of the quarantine, the capacity of Maine’s existing health care system to
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provide care for individual patients could be exceeded. In the summer of 2019, roughly 22 million people traveled to Maine for purposes of temporary recreation. By contrast, Maine has a year-round population of 1.3 million. As of May 25, 2020 Maine had 391 critical care hospital beds and 318 conventional ventilators, many of which were occupied treating in-state patients. Maine has 439 alternative ventilators available. Alternative ventilators are breathing machines that may have otherwise been used in an operating room and now, because of COVID-19, may be used to provide life-sustaining ventilation to patients in intensive care units.
In her May 25 submission, the Governor made clear that there were not sufficient quantities of test kits to test all of the millions of persons seeking to enter the state (assuming the personnel existed to administer them). As the supply of test kits increases, and as the State obtains better information about the interpretation of alternative antibody tests, the State assured it will continue to evaluate the use of the tests as a substitute for, or in addition to, the existing quarantine requirement. There also continues to be significant scientific uncertainty surrounding the notion of “immunity passports”—the idea that individuals who have previously been infected with COVID-19 develop sufficient immunity to prevent them from transmitting the virus.
The Governor recognizes that there will be instances in which the 14-day quarantine rule might not be strictly or ultimately necessary, but stresses that it is impossible to craft a rule that can account for every unique situation that might arise. The goal was to develop a rule that would account for the vast majority of risk from travel into the state: the influx of risk from spring and summer visitors or other persons coming here from areas with
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higher infection rates or for recreational and tourism purposes. By April 29, Maine CDC advised that, as a likely consequence of all of the above measures, Maine appeared to have started to “flatten the curve” (i.e. reduced the rate of new infections).
The 14-day quarantine is a requirement. The intent of making it a requirement rather than advisory was to more forcefully reduce the risk posed by travel into Maine. Executive Order 34 does not purport to limit intra-Maine movement because the Stay-at-Home Order (EO 28) separately provides that protection. Executive Order 34 does not allow persons to self-quarantine in a home state and then travel directly to Maine because of the Governor’s concerns about the reliability of that representation, especially from persons who travelled some distance to reach Maine and had to use restrooms, get food and access lodging along the way.
Executive Order 34 is intended to be enforced by education and community policing, by licensing actions where applicable, and, pursuant to 37-B M.R.S. § 786, by law enforcement as a Class E crime after an individual has failed to comply with a just or reasonable order relative to enforcement of the Order. As of May 25, the Governor was not aware of enforcement efforts other than education and community policing.
DISCUSSION Through their Motion for an Expedited Preliminary Injunction, Plaintiffs ask that the Court “enjoin the Quarantine Restrictions.” Mot. at 1. Specifically, they ask for an order (1) lifting the 14-day quarantine for those entering Maine, (2) lifting the “ban”4 on
4 The parties dispute whether the Governor’s order imposes such a ban at all. Defendant maintains Executive Order 34 only suggests “residents of States of New York, New Jersey, and Connecticut should refrain from travel to Maine” (emphasis added), and that this suggestion is not criminally enforceable.
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all travel from certain locations in the United States, and (3) lifting the prohibition that
prevents “Campground plaintiffs from opening to out-of-state visitors until those visitors
have” self-quarantined in Maine.
Injunctive relief is “an extraordinary and drastic remedy that is never awarded as of
right.” Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st
Cir. 2011) (citations and quotation marks omitted). “To grant a preliminary injunction, a
district court must find the following four elements satisfied: (1) a likelihood of success on
the merits, (2) a likelihood of irreparable harm absent interim relief, (3) a balance of
equities in the plaintiff’s favor, and (4) service of the public interest.” Arborjet, Inc. v.
Rainbow Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). As the party
seeking injunctive relief, Plaintiffs bear the burden of establishing that the factors weigh in
their favor. Nat’l Org. for Marriage v. Daluz, 654 F.3d 115, 117, 119-20 (1st Cir. 2011).
“Likelihood of success is the main bearing wall of the four-factor framework.”
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). On this
issue “the district court is required only to make an estimation of likelihood of success and
‘need not predict the eventual outcome on the merits with absolute assurance.’” Corp.
Opposition at 6; see also Langhauser Decl. ¶ 17. Presumably, this implies that persons from these states able to self-quarantine in private premises in Maine will be tolerated. Plaintiffs nevertheless ask that any such “ban” be lifted as part of the preliminary relief requested in this case.
This is another vexing aspect of the quarantine rule. It purports to criminalize any “violation of this Order,” but expresses the Order’s requirements using a smorgasbord of verbs: for example, “[v]isitors are instructed not to travel to Maine if they are displaying symptoms of COVID-19” (emphasis added). A prospective traveler is left to wonder whether violating the Order’s “instruction,” or suggestions that they “should refrain from travel to Maine” constitute a “violation.” Either the quarantine rule is an executive order enforceable by criminal penalties or it is a sincere suggestion, but it cannot be both. And to signal to an uncertain public that it is officially the former without clarifying what makes a “violation” runs counter to the most basic tenets of due process; to wit, to give fair notice in plain language precisely what conduct constitutes a criminal act.
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Techs., Inc. v. Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (quoting Ross–Simons, 102 F.3d at 16). The moving party’s burden to show it is “likely to succeed” varies depending on the relevance of the remaining preliminary injunction factors. If the party seeking injunctive relief fails to make a persuasive showing of likelihood of success, then generally the court acts within its discretion if it denies relief without addressing the remaining factors. New Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). But the strength of the other three factors can lessen the movant’s burden of showing “likelihood of success;” as other circuits to consider the issue have pointed out, “[h]ow strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.).5 Ultimately, “trial courts have wide discretion in making judgments regarding the appropriateness of such relief.” Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009). A. LIKELIHOOD OF SUCCESS
Plaintiffs’ Complaint seeks a declaratory judgment that Governor Mills’ Executive Orders imposing the 14-day quarantine and Rural Reopening Plan are unconstitutional, and injunctive relief preventing her from enforcing those orders as written. To assess whether they are likely to succeed on these claims requires putting a finer point on the claims
5 See also League of Women Voters of the United States v. Newby, 838 F.3d 1, 6-7 (D.C. Cir. 2016) (applying the “sliding scale approach to weighing the four preliminary injunction factors”); Reilly v. City of Harrisburg, 858 F.3d 173, 178 (3d Cir. 2017), as amended (June 26, 2017); Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 37–38 (2d Cir. 2010).
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themselves. In Count One, Plaintiffs allege the Governor has “deprived citizens of Maine
and the citizens of the several States of their fundamental right to travel, as guaranteed by the Maine Constitution6 and the United States Constitution, in violation of 42 U.S.C. § 1983.”7 Count Two brings a “procedural due process” claim, alleging the Governor
“deprive[d] Plaintiffs of their liberty without due process,” specifically, “without any preor post-deprivation process.”8 Count Three—Plaintiffs’ challenge to the Rural Reopening
Plan—is not related to the relief requested in the motion for preliminary injunction, so I
will not consider whether Plaintiffs are likely to succeed on that claim here.
1. Plaintiffs Have Not Shown Likelihood of Success on Count One as of This Date
a. Standard of review
Citing Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Plaintiffs argue that the
restriction imposed on their fundamental right to travel is subject to the most demanding
level of judicial scrutiny, the aptly named “strict scrutiny” test, because the constitutional
right in question is fundamental. Mot. at 9. In order to stand, the 14-day quarantine rule
must be motivated by a compelling state interest and must also be narrowly tailored to
6 Maine’s Constitution does not provide unique protections of an individual’s “fundamental right to travel,” so I do not consider the state constitution as part of my likelihood of success analysis. See Brown v. Dep't of Inland Fisheries & Wildlife, 577 A.2d 1184, 1186 (Me. 1990) (finding the Maine Constitution does not create a fundamental right to travel). 7 The parties dispute whether the Campground Plaintiffs have standing to bring this claim. Compare Opposition at 19-20, with Reply at 9-10. Because the resolution of this motion does not rise or fall on that question, I leave it for another day. 8 Plaintiffs bring due process claims under both the United States and Maine constitutions. Compl. ¶¶ 67, 68. Because “the protections afforded by due process and equal protection under the United States and Maine constitutions are coextensive,” In re D.P., 65 A.3d 1216, 1220 (Me. 2013) (citing Conlogue v. Conlogue, 890 A.2d 691 (Me. 2006)), I analyze their likelihood of success using the federal standard.
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serve the government’s interest. Assuming the pandemic is a compelling justification for
restrictions on constitutional liberties, the Plaintiffs argue the 14-day quarantine is not the
least restrictive means of achieving that end. Mot. at 10-14. In their view, a restriction as
drastic as a quarantine must be backed up with individualized findings, like the sort of on-
the-spot findings associated with the arrest or seizure of a person based on probable cause,
and the kind of process that would be required under the Fourth Amendment to substantiate
any prolonged detention. Id. at 14-17.
Citing Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905), Governor Mills argues that the “strict scrutiny” test does not apply to this case.9 She contends that because her
executive orders respond to a serious threat to public health, the quarantine must be upheld
unless and until it is determined to have “no real or substantial relation to” preventing the
spread of disease or is “beyond all question, a plain, palpable invasion of rights secured by
the fundamental law.” Opposition at 2. If Governor Mills is correct that Jacobson applies,
the Court must, in turn, apply a legal standard that gives the most extraordinary deference
to the State’s police powers. In other words, Jacobson represents a legal standard that is at least the opposite of strict judicial scrutiny.10 It barely authorizes judicial review at all.
9 The Governor also cites Campagnie Francaise de Navigation a Vapeur v. Board of Health of the State of Louisiana, 186 U.S. 380 (1902), in which the Supreme Court upheld a quarantine order that barred entry of healthy persons into a municipality currently under quarantine. The Court explained that such quarantine orders are not inherently “repugnant to the Constitution.” Id. at 387. Nothing in this Order suggests otherwise. 10 This Court recently said as much in Calvary Chapel v. Mills, when addressing the right to congregate for religious service. No. 1:20-cv-00156-NT, 2020 U.S. Dist. LEXIS 81962, at *16 (D. Me. May 9, 2020) (“[W]hile such an epidemic is ongoing, the ‘traditional tiers of constitutional scrutiny do not apply.’” (quoting Cassell v. Snyders, No. 20-CV-50153, 2020 U.S. Dist. LEXIS 77512, at *17 (N.D. Ill. May 3, 2020) (citing In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020))). It should be noted, however, that other persuasive authorities have disagreed or merely given lip service to the Jacobson standard. See, e.g., Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020); S. Bay United Pentecostal Church v. Newsom, No.
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When assessing a claim that the fundamental “right to travel” has been infringed by some state action, I look first to the Supreme Court cases providing a legal framework for that claim, rather than to the broadly-stated holding in Jacobson, a case rejecting a “substantive due process” challenge to a compulsory vaccination requirement. Though the Court upheld the state’s mandatory vaccination law in Jacobson, and noted that states have generous leeway to enact legislation in the face of a public health emergency, it explicitly acknowledged the role of the courts to adjudicate subsequent claims that a state has gone too far. Jacobson 197 U.S. at 28 (recognizing that a state’s police power “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.”).
In the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992) (noting that “cases since Roe [v. Wade] accord with [the] view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.”) (citing Jacobson as a “see also” authority). This evolution has likewise refined the scope of the “constitutional right to travel.” Noting the “debate about the appropriate standard of review” in “right to travel” cases, the Supreme Court solidified the framework for this analysis in Saenz v. Roe, 526 U.S. 489, 500 (1999). And when the Supreme Court elaborates a new standard for analyzing a constitutional
20-55533, 2020 WL 2687079, at *2 (9th Cir. May 22, 2020) (Collins, J, dissenting); Abbott, 954 F.3d 772, 796 (Dennis, J, dissenting).
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claim, we use that most recent formulation, rather than the framework from a decision for a different constitutional claim, made by a different claimant, in a different state, facing a different public health emergency in a different century.
Plaintiffs also correctly point out that Jacobson has been thoughtfully criticized by legal scholars for lacking in limiting principles characteristic of legal standards. Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 HARV. L. REV. F. at p. 4 (forthcoming 2020); see also Ilya Somin, The Case for “Regular” Judicial Review of Coronavirus Emergency Policies, THE VOLOKH CONSPIRACY (Apr. 15, 2020, 4:16 PM), https://reason.com/2020/04/15/the-case-for-normal-judicial-review-of-coronavirusemergencypolicies, (“imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.”). Instead, the permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided.11 Although Jacobson reflects that, when one weighs
11 The Supreme Court has had good cause to do so, including the experience of two World Wars. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1884 (2017) (“History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights.” (Breyer, J., dissenting)).
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competing interests in the balance, the presence of a major public health crises is a very heavy weight indeed and scientific uncertainties about the best response will afford the state some additional leeway to err on the side of caution,12 it does not provide the standard of review for this case. Civil libertarians may question whether it ought to provide the standard of review in any case. But perhaps that depends on whose ox is being gored.
Because Supreme Court jurisprudence on the constitutional right to travel governs the core issue in this case, I look there for the standard of review. The Supreme Court has defined the right to travel to contain three components, two of which are at issue here: the “right of a citizen of one State to enter and to leave another State,” and “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” Saenz, 526 U.S. at 489. Curtailment of a United States citizen’s right to travel and to enter and abide in the state of his or her choosing requires a compelling justification (i.e., not merely a rational justification). Soto-Lopez, 476 U.S. at 904.
“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Dunn v. Blumstein, 405 U.S. 330, 338 (1972) (quoting United States v. Guest, 383 U.S. 745, 758 (1966)). Significantly, “the freedom to travel includes the ‘freedom to enter and abide in any State in the Union.’” Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898, 902 (1986) (quoting Dunn, 405 U.S. at 338, and Oregon v. Mitchell, supra, 400 U.S. 112, 285 (1970)). This freedom has roots in our Nation’s history and is preserved and protected by several constitutional provisions; among them
12 See Gonzalez v. Carhart, 550 U.S. 124, 163 (2007) (“The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”).
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the Privileges and Immunities Clause, the Commerce Clause, the Due Process Clause, and the Equal Protection Clause. Id. at 902-904; Jones v. Helms, 452 U.S. 412, 418-19 (1981). “Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another.” Jones v. Helms, 452 U.S. 412, 419 (1981). A justification that turns exclusively on the fact that the individual is from away is inherently suspect and in derogation of this most basic freedom. If such a classification can ever be sustained, it must be narrowly drawn to meet the interest that is said to compel it. Cf. Application of Griffiths, 413 U.S. 717, 721 (1973) (“[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.” (quoting Graham v. Richardson, 403 U.S. 365, 372 (1971)); Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (race-based classifications impacting the fundamental right to vote must serve a compelling interest and be narrowly tailored to that end).
The rights tied up in the concept of “travel” protect more than itinerancy. They also include a right to enjoy equal access to the fruits of local commerce and governmental beneficence.
Not unlike the admonition of the Bible that, ‘Ye shall have one manner of law, as well for the stranger, as for one of your own country,’ Leviticus 24:22 (King James Version), the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents. Memorial Hosp. v. Maricopa Cnty., 415 U.S. 250, 261 (1974) (quoting Leviticus 24:22 (King James Version)). In times of crisis, as in times of peace and tranquility, we are one Nation, and not merely a confederation of states each pursuing its own interest. “The Constitution of the United States is a law for rulers and people, equally in war and in peace,
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and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Ex parte Milligan, 71 U.S. 2, 107 (1866).
“It has become axiomatic that ‘[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.’” United States v. Robel, 389 U.S. 258, 265 (1967) (citations omitted). A state might impose a restriction on ascertainable groups by criminalizing knowing or reckless conduct associated with the transmission of COVID-19, such as, for example, a failure to abide by the self-quarantine rule where the individual in question meets high-risk characteristics and the state regulation affords notice of what those characteristics are. Such restrictions might best satisfy a standard requiring that emergency measures be narrowly drawn and would turn on the sort of factual circumstances that reasonable minds would recognize and appreciate. But a restriction that is inherently prejudicial to interstate traffic regardless of circumstance can only be condoned in the face of a dire hazard and, even then, tolerated only so long as the hazard is paramount. Any other approach would not be a narrowly tailored exercise of the police power.
b. Likelihood of success I agree with Plaintiffs that fundamental rights are burdened by the order to quarantine. However, I am not persuaded, at this date, that the measure is not the least burdensome way to serve a compelling governmental interest, given all that we do now know. Although I consider it eminently reasonable for Plaintiffs to earn a living and move about during a state of emergency, Plaintiffs have not persuaded me that they are, at present, “likely” to be able to prove that the quarantine violates their constitutional rights.
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But as the Governor points out, “[c]onditions on the ground can change quickly.” Mot. at 6.
A prohibition that paints with such broad-brush strokes as to color as criminal every person who enters Maine to lodge or camp, or for most any other purpose, unless they quarantine for 14 days may or may not be judged to be “narrowly tailored” despite its rationale. Restrictions of the kind challenged in this action – i.e., restrictions that indiscriminately impact strangers from away who do not own property in the state – clearly burden fundamental rights. Although the quarantine rule purports a certain neutrality insofar as it imposes a restriction on all who enter the state, including state residents, it effectively discriminates among members of the public in practical application because it grants or denies access to Maine’s goods and services based on citizenship status and access to realty, without regard to the presence or absence of circumstances that would justify imposition of such a burden on a person when considered as an individual. Indeed, in case there is any doubt, the Governor has flatly conceded that the quarantine is intended to reduce the risk posed by a large influx of people entering Maine during the summer vacation season.
During the Dust Bowl and Great Depression, the State of California passed a law making it illegal to transport indigent persons across the state border. The Supreme Court struck down the law, relying on the Interstate Commerce Clause, Edwards v. California, 314 U.S. 160 (1941), notwithstanding an unrefuted showing that “the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering.” Id. at 167. In words as
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applicable today as they were then, the Court observed that the constitutional principles on
which our Nation was founded were antithetical to isolationist policies.
We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon ‘the wisdom, need, or appropriateness’ of the legislative efforts of the States to solve such difficulties. See Olsen v. Nebraska, 313 U.S. 236, 246.
But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. It is frequently the case that a State might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. But, in the words of Mr. Justice Cardozo: ‘The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.’ Baldwin v. Seelig, 294 U.S. 511, 523.
Edwards v. California, 314 U.S. 160, 173-74 (1941).
Maine’s 14-day quarantine combined with its Restarting Plan, which allows hotels,
motels, and campgrounds to open to out-of-state residents only if they have “completed
quarantine guidelines” within the state, effectively closes the border for many would-be
travelers. If an out-of-state resident wishes to travel to Vacationland this summer, but does
not have their own property from which to comfortably shoulder the burden of 14 days of
quarantine, they are unable to come to the state without violating the Governor’s Orders.
The Governor nevertheless argues the “quarantine requirement imposes no barrier or
obstacle to entry to or departure from the State like those the Supreme Court has found
unlawful.” Opposition at 16. Indeed. The barrier-to-entry here is unique, and perhaps this
makes it more difficult to overcome. But the Governor’s orders say to any out-of-stater
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who does not own or rent property on which to self-quarantine that the state’s borders are closed for the summer on penalty of fine, imprisonment or both. Taken together, the Orders significantly hinder both the “right of a citizen of one State to enter and to leave another State,” and “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” two of the three “components” of the right to travel recognized by the Supreme Court. Saenz, 526 U.S. at 489. I, therefore, find both of these two components of the right to travel are burdened by the Quarantine Restrictions challenged by Plaintiffs.
Though it is clear that Maine’s Quarantine Restrictions burden Plaintiffs’ “right to travel,” they have not shown a likelihood of success sufficient to justify a preliminary injunction. Plaintiffs argue the regulations sweep too broadly by including those who have already been infected with COVID-19 and those who have self-quarantined in states other than Maine. Motion at 10-11. State government representatives have acknowledged that the quarantine is broad by design. Dr. Shah admits the 14-day quarantine is intended to “err on the side of caution,” even if that means implementing a restriction that may not be necessary in all instances. Shah Decl. ¶¶ 43-44; see also Maine DECD Weekly Update (May 27, 2020) at 10:10 (referring to the 14-day quarantine in June as a “blunt instrument” and “not quite as targeted” at the issues the State is trying to solve). There is no doubt evidence that the state’s restriction is not the least restrictive means to furthering its goal.
But at this early stage, without a developed factual record, I find Plaintiffs have not yet shown they are likely to succeed on this claim. It is not at all clear that there are any less restrictive means for the state to still meet their goal of curbing COVID-19, and
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Plaintiffs’ proposed alternatives are at least arguably unworkable. See Opposition at 1314 (noting the “scientific uncertainty” surrounding issues like immunity, communicability, and testing). These are matters of public policy to be implemented by politicians and to be evaluated by voters, not by unelected judges, at least at this nascent stage. Because there is evidence pointing in both directions, and the other three preliminary injunction factors do not lessen Plaintiffs’ burden to show likelihood of success, I find Plaintiffs have failed to show they are likely to succeed on Count One, their claim that the Governor has violated their fundamental right to travel.
2. Plaintiffs Have Not Shown Likelihood of Success on Count Two as of This Date
Plaintiffs, likewise, fail to show they are likely to succeed on Count Two, their procedural due process claim. Plaintiffs allege they “have no opportunity to challenge the basis for their quarantine, nor to exercise their rights without threat of criminal penalty.” Compl. ¶ 71. They believe this “deprive[d] Plaintiffs of their liberty without due process,” specifically, “without any pre- or post-deprivation process.” Id. ¶ 71. Readers might not be surprised to learn that police power is routinely exercised in this Country without first conducting public or private hearings, and without offending the Constitution. So too here.
While due process “normally requires notice and opportunity for ‘some kind of hearing’ prior to a final deprivation of liberty or property…[t]his generalization is a very loose one.” Herwins v. City of Revere, 163 F.3d 15, 18 (1st Cir. 1998) (internal citations omitted). The Supreme Court has explained “summary administrative action may be justified in emergency situations,” Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 299-300 (1981), “and the reason is not hard to grasp.” S. Commons Condo.
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Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d 82, 86 (1st Cir. 2014). “By their nature, emergency situations require an immediate response. And, in consequence of ‘the necessity of quick action by the State,’ constitutional due process does not require the usual up-front procedural protections in dealing with emergencies.” Id. (quoting Parratt v. Taylor, 451 U.S. 527, 539 (1981), and citing, inter alia, San Gerónimo Caribe Project, Inc. v. Acevedo–Vilá, 687 F.3d 465, 488 (1st Cir. 2012) (en banc) (requiring “additional predeprivation safeguards would defeat the very purpose of the emergency statute” when “the very point of [these] emergency procedures is to permit public officials to act promptly where there is an emergency”); Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 419–20 (3d Cir.2008) (officials’ “far from perfect” response to a health hazard was permissible when “faced with a situation in which a failure to act quickly could have serious health consequences”)).
Because the COVID-19 scenario is the kind of scenario for which emergency action would be expected, and because Plaintiffs have not persuasively shown that they are denied access to quick and meaningful post-deprivation review of administrative action, either through this very proceeding or through some other proceeding in state court, I conclude that Plaintiffs’ due process arguments are no more likely to succeed than their travel-related arguments. Since they fail to show a likelihood on either of the claims raised in their Motion for an Expedited Preliminary Injunction, I will deny the Motion.
Based on the foregoing considerations, Plaintiffs have raised a very serious matter for judicial resolution and I am persuaded that they might be able to demonstrate a violation of the Constitution sometime during the travel of this case. However, as matters now stand,
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given the nature of the COVID-19 pandemic, in particular in regard to the threat posed by
a modern-day traveling public inclined to migrate to Maine in numbers as high as 20
million over the course of a couple of months, the dearth of treatment modalities in relation
to such a swollen population, and the impracticality of stemming the tide through the
individualized assessment of persons having already arrived, I am not persuaded that the
evidence supports a finding that the Governor has yet exceeded her powers, such as would
justify an expedited preliminary injunction.
B. IRREPARABLE INJURY
To show they are entitled to preliminary injunctive relief, Plaintiffs must also show
they will suffer irreparable injury. “‘Irreparable injury’ in the preliminary injunction
context means an injury that cannot adequately be compensated for either by a later-issued
permanent injunction, after a full adjudication on the merits, or by a later-issued damages
remedy.”13 Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005).
While certain constitutional violations are more likely to bring about irreparable harm, we have generally reserved this status for “infringements of free speech, association, privacy or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief.” Pub. Serv. Co. of New Hampshire v. West Newbury, 835 F.2d 380, 382 (1st Cir.1987). …
Also, it has long been held that traditional economic damages can be remedied by compensatory awards, and thus do not rise to the level of being irreparable. Puerto Rico Hosp. Supply, Inc. v. Boston Scientific Corp., 426 F.3d 503, 507 (1st Cir. 2005). Yet, it has also been recognized that some economic losses can be deemed irreparable. For instance, “an exception exists where the potential economic loss is so great as to threaten the existence of the movant’s business.” Performance Unlimited, Inc. v. Questar
13 There is no claim for money damages in this action. The Eleventh Amendment would bar such a claim in any event.
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Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir.1995) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (finding no abuse of discretion in determination that “absent preliminary relief [movants] would suffer a substantial loss of business and perhaps even bankruptcy”)) …. Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 484-85 (1st Cir. 2009). All of the Plaintiffs have presented more than a straw-man showing in relation to injury. The right to travel is as deeply seeded in our constitutional soil as the right of assembly and is, apodictically, essential to the observation of a right of assembly. Moreover, the right to travel is fundamental; leisurely and temporary migrations are no less a component of liberty than the toilsome and cruel migrations of the Dust Bowl. And while the business-entity Plaintiffs have not yet suggested the quarantine will destroy them, perhaps that showing is only a matter of time. The irreparable injury element presents very weighty concerns. However, at present, I do not have a solid basis to conclude that the concern for Plaintiffs’ injuries exceeds the concern for public health or would justify a federal judge wading into the breach to dictate the most appropriate response to this pandemic insofar as the traveling public is concerned. C. BALANCE OF EQUITIES To obtain preliminary injunctive relief, a Plaintiff must also show “a balance of equities in [her] favor.” Arborjet, 794 F.3d at 171. This involves weighing “the balance of relevant hardships as between the parties.” Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 482 (1st Cir. 2009). The Governor’s executive orders are informed by a desire to preserve public health in the face of a pandemic. Striking down the quarantine order would seriously undermine her efforts and, based on the current record, would effectively
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disregard the balance of powers established by our federal system. Plaintiffs have not shown their hardships—exclusion from vacation property and loss of revenue— definitively outweigh the purported public health danger of lifting the quarantine restrictions, or the state’s burden in fashioning a new response to the COVID-19 challenge. D. PUBLIC INTEREST
“The public interest factor requires this Court to inquire whether there are public interests beyond the private interests of the litigants that would be affected by the issuance or denial of injunctive relief.” Everett J. Prescott, Inc. v. Ross, 383 F. Supp. 2d 180, 193 (D. Me. 2005)). The public interest in this case is enormous, though not monolithic. The type of injunctive relief Plaintiffs seek would upset the bedrock of the state’s public health response to COVID-19, an area this Court does not wade into lightly. But Plaintiffs have identified important interests on their side, as well—the lost profits from a lost summer travel season, and the burden on many out-of-staters’ ability to travel to Maine. Despite these very real burdens, on balance, the Plaintiffs have not done enough to show the interest in issuing injunctive relief outweighs the public’s interest in denial. I, therefore, find this factor tips the scale in favor of the Governor.
CONCLUSION Plaintiffs advance a civil rights action that has potential. Their case pits a prudent fear of a possible explosion of infection against a competing ethic best described as the indomitable human desire to enjoy individual liberty and pursue one’s life and livelihood notwithstanding the sort of repercussions that keep epidemiologists and practitioners of the precautionary principle awake at night. Where the tipping point lies between these
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Case 2:20-cv-00176-LEW Document 20 Filed 05/29/20 Page 28 of 28 PageID #: 251 opposing values cannot be drawn with a bright line, but presumably there comes a time when prudent fears give way to the hopeful spirit that informs our migratory nature and the fair-mindedness that presumptively guides the application of police power. However, judging the preliminary injunction motion based on the facts on the ground today, Plaintiffs have not demonstrated a likelihood of success on the merits, a favorable balance of the equities, and the absence of a serious countervailing public interest. Furthermore, irreparable injury is, at this time, only suggested, though it is no doubt mounting. Therefore, Plaintiffs’ Motion for Expedited Preliminary Injunctive Relief is DENIED.
SO ORDERED. Dated this 29th day of May, 2020.
/s/ Lance E. Walker UNITED STATES DISTRICT JUDGE
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 Case 2:20-cv-00176-LEW Document 27 Filed 06/05/20 Page 1 of 4 PageID #: 267

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

BAYLEY’S CAMPGROUND INC., )

FKT RESORT MANAGEMENT LLC, )

FKT BAYLEY LIMITED

)

PARTNERSHIP, DMJ PARKS LLC, )

CURTIS BONNELL, DOLORES

)

HUMISTON, and JAMES BOISVERT, )

)

Plaintiffs,

)

)

v.

)

)

JANET MILLS,

)

)

Defendant.

)

No. 2:20-cv-00176-LEW

ORDER ON PLAINTIFFS’ MOTION FOR EXPEDITED INJUNCTION PENDING APPEAL AND MOTION FOR RECONSIDERATION
On May 29, 2020, I entered an Order denying Plaintiffs’ Motion for Preliminary Injunction. (ECF No. 20). Two days later, Plaintiffs appealed. (ECF No. 21). Now before me are Plaintiffs’ Motion for Expedited Injunction Pending Appeal pursuant to Fed. R. App. P. 8(a)(1)(C), and Plaintiffs’ Motion for Reconsideration. (ECF Nos. 25, 26). The Motions seek the same relief for the same reason—that I grant Plaintiffs’ original request for a preliminary injunction due to an error of law in the May 29, 2020 Order. For the reasons that follow, Plaintiffs’ Motions are DENIED.
In their Motions, Plaintiffs argue I committed an “oversight…which ultimately led to the denial of Plaintiffs’ request for a preliminary injunction.” Motion for Expedited Injunction (“Motion”) at 1. Plaintiffs argue I incorrectly placed the burden on them to show that the Governor’s order is not narrowly tailored, when, in fact, the burden is the

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other way around. Id., citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006); Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666 (2004). This simply is not so. As indicated below, the May 29 Order did not misallocate burdens of proof as Plaintiffs suggest, and it applied the relevant standards Plaintiffs cite in their motion for expedited injunctive relief.
As Plaintiffs correctly point out, once strict scrutiny applies—here, because the fundamental right to travel is infringed—the burden of proof shifts to the government to prove that the regulation at issue is the least restrictive means of achieving a compelling governmental interest. Motion at 4. The Supreme Court has affirmed that this burdenshifting framework applies even in the preliminary injunction context:
In deciding whether to grant a preliminary injunction, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits…. [Plaintiffs] must be deemed likely to prevail unless the [Defendant] has shown that [Plaintiffs]’ proposed less restrictive alternatives are less effective than [the regulation at issue]. Ashcroft, 542 U.S. at 666. The May 29 Order applied these principles. In line with Ashcroft, I noted at the outset that “[a]s the party seeking injunctive relief, Plaintiffs bear the burden of establishing that the [preliminary injunction] factors weigh in their favor.” Order at 11. After finding Plaintiffs’ “fundamental rights are burdened by the order to quarantine,” Id. at 19, I considered whether the Governor had produced sufficient evidence that the burdens imposed were the least restrictive means to combat the threats posed by the COVID-19 pandemic. I found the Governor had done enough to show that any “proposed less restrictive alternatives” would not achieve the same goal. Order at 22 (“It is not at all clear that there are any less restrictive means for the state to still meet their goal
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of curbing COVID-19.”) (emphasis added). This was the Governor’s burden, and I found she carried her burden of proof sufficiently to defeat Plaintiffs’ motion for preliminary injunction.
The language Plaintiffs cite from the May 29 Order does not suggest otherwise. Plaintiffs highlight two sentences from the Order where I concluded that Plaintiffs failed to show they are likely to succeed on Count One. Motion at 5 (citing Order at 21, 23). Nowhere did I indicate, however, that Plaintiffs bore the burden of proving the Governor’s restrictions were not narrowly tailored, or that they had failed to do so. Instead, considering the Governor’s evidence of “the ‘scientific uncertainty’ surrounding issues like immunity, communicability, and testing,” I found that “Plaintiffs’ proposed alternatives are at least arguably unworkable.” Order at 22-23. That is to say, the Governor did enough at this preliminary stage, with the sum of the other three preliminary injunction factors pointing in the state’s favor, to carry her burden to show Plaintiffs’ “proposed less restrictive alternatives” would not still achieve the compelling state interest of combating the COVID19 threat. Having found that the Governor met her burden, I concluded the Plaintiffs were unlikely to succeed on their claim, and denied their motion for preliminary injunctive relief.
The standard for an injunction pending appeal is the same as the standard for a preliminary injunction. Respect Me. PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010). And Plaintiffs’ Motion for Reconsideration can succeed “only if they can show that ‘the original judgment evidenced a manifest error of law, if there is newly discovered evidence, or in certain other narrow situations.’” Capron v. Office of the AG of Mass., 944 F.3d 9, 44 (1st Cir. 2019) (citing Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014). As
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Case 2:20-cv-00176-LEW Document 27 Filed 06/05/20 Page 4 of 4 PageID #: 270 discussed above, because I find Plaintiffs’ Motions do not introduce any new grounds to justify awarding them preliminary injunctive relief in this case, their Motion for Expedited Injunction Pending Appeal (ECF No. 25) and Motion for Reconsideration (ECF No. 26) are DENIED.
SO ORDERED. Dated this 5th day of June, 2020.
/s/ Lance E. Walker UNITED STATES DISTRICT JUDGE
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 Case 2:20-cv-00176-LEW Document 28 Filed 06/08/20 Page 1 of 3 PageID #: 271

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

BAYLEY’S CAMPGROUND, INC, d/b/a BAYLEY’S CAMPING RESORT, et al.,
Plaintiffs
v.
JANET MILLS, in her official capacity as the Governor of the State of Maine,
Defendant.

CIVIL ACTION NO.: 2:20-cv-00176-LEW

DEFENDANT’S ASSENTED-TO MOTION TO STAY FURTHER PROCEEDINGS PENDING APPEAL Defendant respectfully requests that further proceedings in this Court be stayed pending a further order or guidance from the First Circuit in plaintiffs’ appeal of this Court’s order denying plaintiff’s Motion for Preliminary Injunction. In support, defendant states as follows: 1. At issue in this case is the constitutionality of the Governor’s executive order, entered in response to the COVID-19 pandemic, requiring persons entering Maine (with some exceptions) to self-quarantine for 14 days. 2. On May 15, 2002, the plaintiffs filed a Motion for Preliminary Injunction asking that the executive order be enjoined. See Docket Item 3. 3. On May 29, 2020, following a response from defendant, the Court entered an order denying the Motion for Preliminary Injunction. See Docket Item 20. 4. On June 1, 2020, plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the First Circuit of this Court’s order denying the Motion for Preliminary Injunction. See Docket Item 21.

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5. Plaintiffs subsequently filed a motion for an injunction pending appeal and a motion for reconsideration, both of which this Court denied on June 5, 2020. See Docket Item 27.
6. “[T]he First Circuit's response to the interlocutory appeal is likely to inform the future handling of the case, and may well affect the nature and scope of discovery.” Bruns v. Mayhew, No. 1:12-CV-00131-JAW, 2013 WL 12234023, at *2 (D. Me. May 24, 2013). Potential guidance from the First Circuit may also “assist[] the expeditious and costeffective resolution of this lawsuit.” Id.
7. Plaintiffs have no objection to further proceedings in this Court being stayed pending a further order or guidance from the First Circuit. Wherefore, the defendant respectfully requests that further proceedings in this Court be
stayed pending a further order or guidance from the First Circuit in plaintiffs’ appeal.

Dated: June 8, 2020

/s/ Christopher C. Taub Christopher C. Taub, Dep. Atty. Gen. Christopher.C.Taub@maine.gov Kimberly Patwardhan, Asst. Atty. Gen. Kimberly.Patwardhan@maine.gov Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8800 Fax (207) 287-3145

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Case 2:20-cv-00176-LEW Document 28 Filed 06/08/20 Page 3 of 3 PageID #: 273
CERTIFICATE OF SERVICE I hereby certify that on this, the 8th day of June, 2020, I electronically filed the above document with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following: GENE R. LIBBY glibby@lokllc.com KEITH P. RICHARD krichard@lokllc.com TYLER J. SMITH tsmith@lokllc.com
/s/ Christopher C. Taub CHRISTOPHER C. TAUB Deputy Attorney General Six State House Station Augusta, Maine 04333-0006 Tel. (207) 626-8800 Fax (207) 287-3145
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