In In re Covid-Related Restrictions on Religious Services, (DE Sup. Ct., Aug. 1, 2024), the Delaware Supreme Court upheld the dismissal by two lower courts of challenges to restrictions on houses of worship imposed by orders of Delaware's governor during the early stages of the Covid pandemic. Plaintiffs filed suit in the Chancery Court over 18 months after the restrictions were lifted seeking an injunction, and when that was rejected, filed suit in Superior Court seeking damages and a declaratory judgment. The Delaware Supreme Court said in part:
Plaintiffs could not demonstrate reasonable apprehension of future conduct. As the Court of Chancery noted below, “[a]lthough it is true that the virus continues to circulate and mutate, the possibility of a future surge, much less one that will necessitate emergency measures on par with what the world experienced in the first half of 2020, is speculative at best.” Appellants do not confront the speculative nature of the future threat they allege, and instead invoke a generalized refrain that any restriction on their religious freedom causes irreparable harm. This argument, such that it is, does not address the Court of Chancery’s analysis or carry Appellants’ burden to establish subject matter jurisdiction. The importance of Appellants’ constitutional rights is not disputed, but it also is not dispositive. The fact remains that, by the time Appellants filed suit, the Challenged Restrictions had been lifted, the Governor had entered into a binding agreement not to impose future restrictions targeting Houses of Worship, and the apprehension of a future pandemic and conditions like those of the early days of the emergency was hypothetical and speculative. This Court “decline[s] to render an advisory opinion on a hypothetical scenario.”...
... [T]he Superior Court correctly held that Appellants’ injury could not be redressed through a prospective declaratory judgment. In much the same way that Appellants’ irreparable harm argument crumbled because the Challenged Restrictions no longer were in effect and any future action imposing similar restrictions was speculative, the declaratory judgment sought in the Superior Court would not alter the status quo. Moreover, Appellants’ constitutional rights would not be restored or further protected by declaratory relief because the complained-of harm had long since ceased and the threat of future harm was speculative....
The Delaware Supreme Court also concluded that a damage action against the Governor was barred by the Delaware State Tort Claims Act and qualified immunity.
