June 10, 2022 Update:
We are aware of the mask mandate coming back to some districts and make no mistake: we are just as outraged as you. Hello Fellow Supporters,
We have a couple of updates that I have outlined below:
1. Our initial case filed in Federal Court was dismissed as "Moot" since the Governor stopped the EO requiring masks. Bruce built into his argument Brief before this even happened -- knowing the state might argue that -- and he maintained that the case is ripe if schools still require masks, with or without an Executive Order. So, with the help of your contributions, we filed an Appeal, to which the state requested another dismissal from the Appeals court on the basis that it still is "Moot". Bruce was then tasked with writing an intensive Reply Brief to the Appeals court, arguing that our case is not moot, and that we request an Oral Argument.
Here is the latest message from Bruce on June 3rd, 2022:
"Attached is our final Reply Brief filed in the U.S. Court of Appeals for the Third Circuit tonight as per the filing stamp below. We do not know if the Court will grant oral argument and we must wait for that decision. If not, then the court will decide the federal masking case on the basis of the filed briefs. I have also attached our opening brief and the State's opposition brief, for completeness."
**Those documents can be found at www.freenjkids.com OR on the FB Page Class Action Free NJ Kids. **
As for our second lawsuit filed in State Court, this was dismissed for the same reason: the issue is "moot" because the Governor rescinded his EO's. Again, Bruce Afran built into every brief a solid argument that our case is ripe as long as ANY school masks kids, with or without an EO. This is why we continue to appeal. The State Appellate Court dismissed our appeal, but thanks to your contributions, Bruce is now filing with the New Jersey Supreme Court to hear our case.
On this topic, from Bruce on June 3rd: "We will also be filing our brief in the New Jersey Supreme Court asking the court to interview and reverse the Appellate Division's dismissal -- as you may recall the Appellate Division reversed on grounds of mootness and we will be asking the Supreme Court to reverse that decision. That next brief will be filed within the next two weeks."
We will continue to update you on our progress in this fight! We are still fighting! Thank you for your support, Bruce and his legal team could not continue to fight without you.
April 26, 2022 -- Hello Fellow Supporters of the most important legal battle in our lifetime - the battle to reclaim our rights and our children's rights. Thank you for your patience as we continue the long journey, with some setbacks that do not deter us.
LUCKILY, we have Bruce Afran and his legal team crafting brilliant and just arguments that give little room for the State to argue against. Bruce, in his wisdom from decades of experience, knows that most major court decisions are won in the Supreme Court (either state or federal) on appeal. .
THE LATEST UPDATE FROM BRUCE AFRAN:
"As you know, we have been litigating two appeals in the federal and state appeals courts. I have summarized the status of the appeals below:
1. The Federal Appeal. On February 22, 2022 we filed our brief in the U.S. Court of Appeals in Philadelphia appealing the federal judge's denial in December of the injunction on First Amendment grounds. (all documents can be found on freenjkids.com)
The State's response brief was due April 7, 2022. We will file a rebuttal brief 14 days later after their response is submitted.
As for timing, under the Federal Rules of Appellate Procedure, the U.S. Court of Appeals is not required to hold oral argument; the court will advise if there is to be argument or if it will decide the appeal without argument. There is no timeline for a decision and it could take a few weeks or several months, in the Court's discretion.
2. The State Appeal. On March 14, 2022, we filed our brief in the Appellate Division of the Superior Court seeking a judgment that the Executive Orders violate the Governor's powers under New Jersey law and the State Constitution. The brief also challenges the legality of the Department of Health "guidance" authorizing school districts to impose their own masking orders; a copy of the Appellate Division brief is attached.
3. State's Motion to Dismiss Appeal. The State has filed a motion in the Appellate Division seeking to dismiss the appeal as "moot" on the ground that the Governor has vacated the masking orders. We filed a response brief (also on freenjkids.com) arguing that the case is not moot because: 1) the Governor has now authorized school districts to issue their own masking orders; and 2) the Governor has stated repeatedly that he reserves the right to reinstate the masking orders in his sole discretion.
UPDATE ON COURT DECISION: The Appellate Division granted the motion to dismiss the appeal as to the masking order under EO251 as moot on the ground that the order itself is cancelled. The Court also held that it cannot be said to be likely to recur because the conditions underpinning the virus have changed. This is, frankly, nonsensical, since the Governor himself has reserved the right to reinstate and there is no basis to suggest that the mere changes in the virus mitigate against repetition the orders (as we have just seen in Philadelphia, for instance).
As such, the structure of the decision effectively denies all review as to these orders and, based on this reasoning, the next time such orders issue and they are terminated in the short term, the appeal will again be "moot", meaning the Executive is free to issue such orders with no judicial recourse. This is untenable and violates basic due process. I would also point out that we sought expedited review months ago in the Appellate Division specifically because of the danger of mootness and the court denied such motion without comment or opinion.
As this shows, the Appellate Division's decisions deny any judicial review as to these issues either on an expedited basis or under the regular appellate schedule. I believe there will be interest at the NJ Supreme Court as to such questions, especially from the conservative justices since, in my view, the Appellate Division decision is, in essence, a denial of due process on an issue that is fundamental to millions of people in the State.
In addition, the Appellate Division also denied the motion to amend the appeal without explanation.
We have three options at this time:
1. We can file a Notice of Petition and a brief to the New Jersey Supreme Court, asking the Supreme Court to accept this appeal; the Court does not have to accept the case and will have to make a determination as to whether the issues present important public or constitutional questions. Obviously, the importance of these issues is self-evident so we must take this additional step.
2. We could also take a direct appeal "as of right" to the Supreme Court on the theory that a major constitutional issue is presented in that the Appellate Division's construction of the mootness doctrine leaves all emergency executive orders issued under the Emergency Health Powers Act or the Disaster Control Act effectively beyond judicial review. We would also file a Petition on these same grounds (Item "1" above) to be certain we don't get knocked out on the question of a direct appeal "as of right".
3. Notwithstanding Item "1" or "2" we can file a new appeal challenging EO 292 and the Health Dept. guidelines and simply refile our brief and appendix in slightly modified form. The order of denial merely denies the right to amend this present appeal but does not declare such issues moot or otherwise resolve such issues as to EO 292 or the Health Dept. Guidelines.
(from Kelly: UPON DISCUSSION WITH PLAINTIFFS AND HIS LEGAL TEAM, WE ARE MOVING FORWARD WITH ALL THREE OPTIONS.)
Federal Appeal: On a separate issue, we have a rebuttal brief due Thursday, April 28, 2022, in the US Court of Appeals on the federal decision. In that case, the State has also made the mootness argument but our federal complaint was broad and covered the practice of allowing individual school districts to issue their own masking orders, a practice that is still ongoing. We will argue the federal appeal is not moot since it challenges a continuing practice.
In any event, cases of this nature are usually decided at the highest court level (for example, the Church and synagogue cases in New York under Covid, so we must continue to go forward. In litigation of this nature we must expect to go the whole route so we will plow ahead!
As you can see, a tremendous amount of work has gone into these briefs extending over the past six months. Please feel free to post or forward the briefs to any members of our group or any interested persons as they are all public documents."
The length of this update is indicative of just how much effort and hard work continues to be put into FreeNJKids. Your contribution makes ALL the difference. As soon as I receive the copy of the rebuttal brief on the Federal Appeal, I will post it. THANK YOU for your continued support in this long game. We are in good hands!