NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-340

THE PEOPLE'S FREEDOM ENDEAVOR & another1

vs.

COMMISSIONER OF THE DEPARTMENT OF ELEMENTARY AND SECONDARY 

EDUCATION & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, an unincorporated association and a 

nonprofit corporation with members who have children in various 

public schools throughout the Commonwealth, appeal a Superior 

Court judge's order denying their request for a preliminary 

injunction prohibiting the Department of Elementary and 

1 Children's Health Rights of Massachusetts, Inc. Other 

plaintiffs named in the six complaints that were consolidated in 

the Superior Court are not before us in this appeal.

2 Board of Elementary and Secondary Education, Department of 

Elementary and Secondary Education, Andover public school 

district, Attleboro public school district, Cambridge public 

school district, Carver public school district, city of 

Cambridge, Easton public school district, Franklin public school 

district, Hingham public school district, Northborough public 

school district, Northborough-Southborough regional public 

school district, Sandwich public school district, Southborough 

public school district, Tewksbury public school district, 

Tyngsborough public school district, and West Bridgewater public 

school district.
2

Secondary Education (department), the Board of Elementary and 

Secondary Education (board), and various public school districts3

from requiring most public school students to wear masks while 

attending public schools indoors.4 Concluding that the issues

are moot and the circumstances do not warrant reaching the 

merits, we dismiss the appeal.5

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

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

issued a Statewide school mask mandate requiring all public

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

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

Several local school districts also issued mask mandates. The 

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

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

3 The school districts mentioned in note 2, supra, plus the 

Bridgewater-Raynham regional school district, Dover public 

school district, Dover-Sherborn regional school district, 

Sherborn public school district, and town of Dover.

4 Children's Health Rights of Massachusetts also sought a 

preliminary injunction against the city of Cambridge, 

challenging Cambridge's city-wide indoor mask mandate requiring 

members of the public to wear masks while inside public venues.

5 The city of Cambridge argues that Children's Health Rights of 

Massachusetts lacked standing because it failed to allege any 

member harmed by the city's mask order. Although it appears 

that this argument has force, we do not reach it because we 

decide this appeal on mootness grounds.

6 The city of Cambridge implemented its mask mandate on September 

3, 2021.
3

districts or municipalities still have local mask mandates in 

place.7 The mandates triggered a series of lawsuits.

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

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

Hampden Superior Court on behalf of certain parents of schoolaged children in Massachusetts seeking to enjoin the department

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

additional plaintiffs filed five similar lawsuits that also 

included related local school mask requirements. The Children's 

Health Rights of Massachusetts filed complaints in Norfolk, 

Bristol, and Plymouth Superior Courts. The fourth case was 

brought in Middlesex Superior Court on behalf of eleven parents 

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

nonprofit corporation, brought the fifth suit in Norfolk 

Superior Court.

The claims against the department and the board alleged 

that the State lacked authority to issue the Statewide school 

mask requirement and that the Statewide and local mask 

requirements were "preempted" by statutory provisions conferring 

authority on the Department of Public Health to regulate 

infectious diseases. The complaints that included local towns 

and municipalities also alleged that the Statewide mask 

7 The city of Cambridge mask order expired on March 13, 2022.
4

requirement and local requirements violate parents' right to due 

process and natural rights under the Massachusetts Constitution 

by interfering with their ability to make "healthcare decisions"

and otherwise direct the upbringing of their children.

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

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

Superior Court judge denied plaintiffs' collective motions for 

preliminary injunction, finding that plaintiffs failed to

demonstrate that they were likely to succeed on the merits of 

their claims or that they had suffered or would suffer 

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

Health Rights, and Citizens for Medical Freedom filed timely 

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

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

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

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

denied the petition in a detailed memorandum and order 

addressing all the parties' substantive claims. The single 

justice ultimately determined that the plaintiffs failed to 

8 Neither the Family Freedom Endeavor nor the individual parent 

plaintiffs appealed. Although Citizens for Medical Freedom 

filed a notice of appeal, it failed to file a brief and 

accordingly is not a party to the present appeal. See Mass. 

R. A. P. 19 (e), as appearing in 481 Mass. 1642 (2019).
5

sustain their burden to show a likelihood of success on the 

merits.

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

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

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

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

executive orders imposing Statewide mask mandate in public 

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

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

further effective relief" (quotations and citation omitted). 

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

should be dismissed as moot. The State and local mask 

requirements that the plaintiffs seek to enjoin are no longer in 

effect. Thus, there is nothing to enjoin.

b. Discretion to decide the issues. In reaching our 

conclusion, we reject the plaintiffs' argument that we should 

exercise our discretion to decide the issues despite their 

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

situation presented is capable of repetition, yet evading 

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

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

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

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

(citation omitted). Id. Among the factors we consider in 
6

determining whether to decide a moot issue are the likelihood 

that the question will "arise again in similar factual 

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

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

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

Here, the plaintiffs' argument that the department's 

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

acute public health crisis in 2021, presages a reinstatement of 

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

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

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

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

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

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

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

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

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

changes suggest that the factual underpinnings of the dispute 

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

appellate decision a useless and inappropriate exercise" 

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

potential resurrection of mask requirements in public schools, 

yet another year removed from the onset of COVID-19, that 
7

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

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

to the circumstances existing when the Statewide public school 

mask mandate was issued in August 2021. We therefore conclude 

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

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

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

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

403 Mass 621, 627 (1988).

Although the plaintiffs do not specifically argue that the 

relevant issues, if capable of repetition, likely would evade 

review before again becoming moot, we pause to reiterate the 

SJC's response to this concern in nearly identical circumstances

involving the broader Statewide mask mandate for all public 

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

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

related to pregnancy, commitment orders, and student suspension" 

9 We note the recent Department of Health and Human Services

(HHS) announcement that the Federal public health emergency for 

COVID-19 will expire on May 11, 2023. The HHS press release 

indicated that "since the peak of the Omicron surge at the end 

of January 2022: [d]aily COVID-19 reported cases are down 92%;

COVID-19 deaths have declined by over 80%; and [n]ew COVID-19 

hospitalizations are down nearly 80%." U.S. Department of 

Health and Human Services, Fact Sheet: COVID-19 Public Health 

Emergency Transition Roadmap (Feb. 9, 2023),

https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-

public-health-emergency-transition-roadmap.html.
8

(citation omitted). Id. at 587. "Thus, it is impossible to 

posit whether the circumstances that might spur a new Statewide 

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

not last long enough to enable appellate review of a challenge 

to such a mandate." Id.

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

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

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

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

reaching the merits. See Branch v. Commonwealth Employment 

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

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

Conclusion. The appeals of the People's Freedom Endeavor 

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

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

same reason, the order of the Superior Court judge denying 

injunctive relief is vacated. The case is remanded to the 
9

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

appropriate.10 

So ordered.

By the Court (Englander, 

Grant & Brennan, JJ.11),

Clerk

Entered: April 4, 2023.

10 Because we do not reach the merits, the local districts' 

request for appellate attorney's fees and costs is denied.

11 The panelists are listed in order of seniority.