A federal appeals court will decide whether Maine’s emergency rules to prevent the spread of COVID-19, including a 14-day quarantine for most out-of-state visitors, violated the U.S. Constitution.

Gov. Janet Mills has faced three federal lawsuits over her executive orders during the pandemic. Judges in the U.S. District Court of Maine have decided in her favor in all three, and the plaintiffs have all appealed to the 1st Circuit Court of Appeals in Boston. A panel of judges heard oral arguments in two of those cases Wednesday morning.

The first is a lawsuit brought by the owners of Bayley’s Camping Resort in Scarborough, as well as the owner of two restaurants patronized primarily by those staying at Bayley’s. Two New Hampshire residents who want to camp in Maine also joined the complaint. The owners of Little Ossipee Lake Campground in Waterboro were also part of the original lawsuit but are not part of the appeal.

The plaintiffs sued the governor over restrictions for tourists, arguing in part that the quarantine requirement is an unconstitutional restriction on people’s right to travel freely from state to state.

Since that time, the restriction has changed. The governor’s office repealed the earlier version of the quarantine and instituted a newer version. Now, visitors can be exempt from the quarantine if they test negative for COVID-19 before they travel to Maine, and people from certain states like New Hampshire don’t even need to do that.

The second lawsuit was brought by a church in Orrington. At the time that complaint was filed, the state banned gatherings of more than 10 people. Calvary Chapel Bangor sued over that restriction, saying it violated the right to free speech and free exercise of religious beliefs.

That rule has also changed. The state currently sets the cap on indoor gatherings at 50 people and outdoor gatherings at 100 people. Certain venues might have a lesser capacity in light of social distancing requirements.

In both cases, different judges at the lower court rejected the plaintiffs’ requests for emergency relief in May. The plaintiffs then appealed and put their underlying cases on hold at the lower court.

While the two cases are different, the oral arguments in both appeals grappled in part with the way restrictions have changed over the life of the lawsuits. While the conditions aren’t exactly the same as when they filed their lawsuits, the plaintiffs have pursued their cases as a check on the governor’s power.

“She’s telling you that she has the power to effectively suspend constitutional rights – be it travel bans, closing churches, banning protests – so long as they may have an effect on the spread of COVID-19,” attorney Tyler Smith argued on behalf of the campground and its related plaintiffs.

“Is the state allowing conduct of similar risk to worship while restricting worship?” attorney Roger Ganem argued for the church. “And if that’s the case, it doesn’t meet the free exercise standard.”

The state defended the governor’s actions as appropriate and responsive during the pandemic.

“We understand that religion has special protection under the First Amendment,” Deputy Attorney General Chris Taub said during the argument about church services. “We don’t take that lightly, but at the same time, the state was facing an unprecedented pandemic. So we had to balance that interest in protecting religious freedom (with) protecting the health and safety of Maine’s people.”

The court does not have a timetable to issue a decision on either case.

A group of business owners also sued the governor this spring because her reopening plan put certain restrictions on their operations.

One of those plaintiffs was Rick Savage, co-owner of Sunday River Brewing Company in Bethel. Early in the pandemic, the Lewiston Sun Journal reported that Savage opened the brewpub in defiance of the governor’s orders, causing him to temporarily lose his state licenses.

A district court judge granted a motion to dismiss that lawsuit last month. Some of those businesses then filed an appeal to the 1st Circuit. The parties have not yet submitted their briefs, and the court has not scheduled oral arguments.

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