DOCUMENT 26

ELECTRONICALLY FILED
7/27/2020 11:28 AM
03-CV-2020-900935.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

BARRY MUNZA, LARRY LEWIS, )

DEBBIE MATHIS, )
)
Plaintiffs, )
)
v. ) CV-2020-900935.00
)
GOVERNOR KAY IVEY, in her )
official capacity as Governor of )
the State of Alabama, and )
SCOTT HARRIS in his official )
capacity as State Health Officer, and )
ALABAMA STATE BOARD OF )
HEALTH, )
)
Defendants. )

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS,

OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

Steve Marshall
Attorney General

Brad A. Chynoweth (CHY001)

A. Reid Harris (HAR389)
Assistant Attorneys General

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
(334) 242-7300
(334) 353-8400 (fax)
Brad.Chynoweth@AlabamaAG.gov
Reid.Harris@AlabamaAG.gov

Counsel for Governor Kay Ivey, State Health

Officer Scott Harris, and the Alabama State
Board of Health
 DOCUMENT 26

Table of Contents
Introduction ................................................................................................................................... 1

Legal Standard .............................................................................................................................. 2

Facts ............................................................................................................................................... 3

A. The COVID-19 Pandemic, Social Distancing, and Facial Coverings. ..................... 3

B. State Health Officer Dr. Scott Harris Addresses the COVID-19 Pandemic
Through a Series of Emergency Rules from March 20, 2020 through May
21, 2020. ......................................................................................................................... 5

C. Beginning June 30, 2020, Dr. Harris’s Recommendations Were Issued as

Emergency Proclamations by Governor Ivey Pursuant to the Alabama
Emergency Management Act (“EMA”). .................................................................... 6

D. On July 15, 2020, Governor Ivey Issued the Mask Requirement Challenged
in this Lawsuit By Means of Another Emergency Proclamation Under the
EMA Amending the Safer at Home Order. ............................................................... 8

E. Plaintiffs’ Lawsuit and Allegations of Personal Injury. ........................................... 9

Argument ..................................................................................................................................... 10

A. Governor Ivey and Dr. Harris Acted with Statutory Authority at All Times
in Issuing Orders Related to Controlling the Spread of COVID-19 in
Alabama. ..................................................................................................................... 10

i. Dr. Harris’s Health Orders from March 17, 2020 to May 21, 2020
Were Validly Issued as Emergency Rules Under the APA. ............................ 10

ii. Beginning June 30, 2020, Dr. Harris’s Safer at Home Order
Proceeded as a Recommendation of the State Health Officer to the
Governor for the Prevention of Disease But Was Given the Force of
Law by the Governor Pursuant to the EMA. ................................................... 13

B. Because Plaintiff Can Prove No Set of Facts Establishing One of the

Exceptions to the State’s Sovereign Immunity Applies, the Court Lacks
Subject-Matter Jurisdiction Over Plaintiff’s Claims.............................................. 17

i. The Plaintiffs Claims for Injunctive Relief Against Defendants in

their Official Capacities Are Barred by Sovereign Immunity
Because They Do Not Fall Within the Exception for Actions Beyond

i
 DOCUMENT 26

the State Officials’ Authority Since Defendants Acted Within Their

Statutory Authority. ........................................................................................... 19

ii. Defendant Alabama State Board of Health Is Entitled to Sovereign

Immunity Because There Is No Exception to Its Immunity. .......................... 21

C. Plaintiffs Lack Standing Because They Fail to Plead Any Concrete or

Particular Injury Caused by the Mask Requirement. ............................................ 21

D. For the Same Reasons Plaintiffs Fail to Allege Governor Ivey or Dr. Harris
Acted Beyond Their Statutory Authority, Plaintiffs Fail to State a Claim
Upon Which Relief Can Be Granted. ....................................................................... 23

E. Plaintiffs’ Claims That Dr. Harris Violated the APA in the Past Are Moot
Because They Seek Only Prospective Relief and the Current Health Order
Is Issued Pursuant to Governor Ivey’s Authority Under the EMA. ..................... 23

Conclusion ................................................................................................................................... 24

CERTIFICATE OF SERVICE ................................................................................................. 26

ii
 DOCUMENT 26

Introduction
A deadly virus, easily transmitted, has required dramatic steps by all fifty state

governments to protect the public health. Since it was first detected in Alabama on March 13,

2020, COVID-19 has threatened to overwhelm the State’s healthcare system with a large number

of patients in need of Intensive Care Unit (“ICU”) capacity. On July 15, 2020, with the State’s

ICU bed capacity at 87%, Governor Ivey issued an emergency proclamation to implement State

Health Officer Dr. Scott Harris’s recommendation that masks or facial coverings be worn under

certain circumstances.

Plaintiffs file suit alleging Governor Ivey and Dr. Harris lacked any statutory authority to

issue a statewide mask mandate. They do not allege that they are injured in any personal way but

state only that they sometimes come within six feet of people in their daily life and might be

required to wear a mask, and that they do not think the requirement is legal. But it is.

Dr. Harris validly issued health orders from March 17, 2020, to June 30, 2020 as emergency

rules under the Alabama Administrative Procedure Act (“APA”) to attempt to slow the spread of

COVID-19, or “flatten the curve,” so the State’s healthcare system would not be overwhelmed.

Because Dr. Harris’s authority to issue emergency rules under the APA was arguably limited to

120 days from the first March 17 order, Governor Ivey gave Dr. Harris’s recommendations the

force of law by emergency proclamation under the Alabama Emergency Management Act of 1955

(“EMA”) beginning on June 30, 2020. Governor Ivey issued the mask requirement Plaintiffs

challenge in this lawsuit under the EMA on July 15, 2020. The EMA provides ample authority for

Governor Ivey to issue a statewide mask requirement to slow the spread of COVID-19. Plaintiffs’

Complaint should be dismissed.

1
 DOCUMENT 26

Legal Standard
Defendants move to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction on

the grounds of standing and sovereign immunity and under Rule 12(b)(6) for failure to state a

claim upon which relief can be granted. In ruling on a motion to dismiss under either rule, the

Court must accept the allegations of the complaint as true. Ex parte Ala. Dep’t of Transp., 978 So.

2d 17, 21 (Ala. 2007).

In ruling on a motion to dismiss for lack of subject-matter jurisdiction, a court will not

consider “whether the pleader may ultimately prevail but whether the pleader may possibly

prevail.” Id. Where a state official asserts the court lacks subject-matter jurisdiction under 12(b)(1)

because a plaintiff’s complaint fails to come within any exception to sovereign immunity, “the

party asserting the defense of immunity[] [bears] the burden of demonstrating that [the plaintiff]

can prove no set of facts establishing one of the exceptions to the State’s sovereign immunity.”

Id.; see also Burch v. Birdsong, 181 So. 3d 343, 347-48 (Ala. Civ. App. 2015). “[A] court ruling

on a Rule 12(b)(1) motion to dismiss may consider documents outside the pleadings to assure itself

that it has jurisdiction.” Ex parte Safeway Ins. Co. of Ala., Inc., 990 So. 2d 344, 349 (Ala. 2008)

(internal quotation and citation omitted).

A Rule 12(b)(6) motion “tests the sufficiency of the pleadings to determine if the plaintiff

has stated a claim upon which relief can be granted, and in ruling on such a motion, the trial court’s

examination is limited to the pleadings.” Pub. Relations Counsel, Inc. v. City of Mobile, 565 So.

2d 78, 81 (Ala. 1990). A complaint may be dismissed for failure to state a claim “when it appears

beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.” Seals v. City of

Columbia, 575 So. 2d 1061, 1063 (Ala. 1991).

Alternatively, to the extent the Court considers matters outside the pleadings and this

requires the Court to consider Defendants’ motion as a motion for summary judgment under Rule

2
 DOCUMENT 26

56, Defendants move for summary judgment. A motion for summary judgment is to be granted

when no genuine issue of material fact exists and the moving party is entitled to a judgment as a

matter of law. Ala. R. Civ. P. 56(c)(3). A party moving for a summary judgment must make a

prima facie showing that there is no genuine issue as to any material fact and that they are entitled

to judgment as a matter of law. Shows v. Mayfield Oil Co., Inc., 743 So. 2d 465, 466 (Ala. 1999).

If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant’s

prima facie showing by “substantial evidence.” Id. “Substantial evidence is evidence of such

weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably

infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Fla.,

547 So. 2d 870, 871 (Ala. 1989).

Facts
A. The COVID-19 Pandemic, Social Distancing, and Facial Coverings.

In December 2019, a new (or novel) human coronavirus type emerged in China. (Exhibit

14, Scott Harris Affidavit ¶ 1.) The virus, which causes the disease now known as Coronavirus

Disease 2019 (COVID-19), spread quickly around the world. (Id.) The World Health Organization

(“WHO”) declared the outbreak a Public Health Emergency of International Concern on January

30, 2020. (Id.) On March 11, 2020, the WHO declared that the outbreak can be described as a

pandemic. (Id.)

On March 6, 2020, the State Board of Health designated COVID-19 to be a disease of

epidemic potential, a threat to the health and welfare of the public, or otherwise of public health

importance, and added COVID-19 to the list of notifiable diseases classified as immediate or

extremely urgent and requiring report to the County or State Health Department within four hours

of presumptive diagnosis. (Exhibit 14, Harris Aff. ¶ 2; Exhibit 1.) On March 13, 2020, President

Donald Trump declared that the COVID-19 outbreak in the United States constitutes a national

3
 DOCUMENT 26

emergency. (Id. ¶ 3.) Also, on March 13, 2020, COVID-19 was detected in Alabama. (Id. ¶ 4) The

same day, Governor Kay Ivey issued a proclamation declaring a state of emergency for the State

of Alabama due to the COVID-19 outbreak. (Id.; Exhibit 2.)

Throughout this epidemic, State Health Officer Dr. Scott Harris has been in contact with

health care experts and professionals throughout the state and in other states, monitoring the spread

of the disease, its effects on patients, and its effects on the health care system. (Exhibit 14, Harris

Aff. ¶ 12.) When COVID-19 spreads rapidly, a deluge of cases can cause great strain on the health

care system, particularly ICU capacity. (Id. ¶ 13.) These results have been documented in other

countries and in the United States. (Id.) It is therefore necessary to take appropriate action to slow

the spread of the disease in order to prevent a spike of cases that could overwhelm the health care

system. (Id.)

While there were only 6 reported cases of COVID-19 on March 13, 2020, as of July 15,

2020, when the mask requirement challenged in this lawsuit was adopted, there were 58,225 cases

of COVID-19 in Alabama and 1,183 deaths attributed to COVID-19. (Exhibit 14, Harris Aff. ¶ 5.)

On July 15, 2020, there were also 7,378 hospitalizations of individuals due to COVID-19 in

Alabama, including 941 individuals in an Intensive Care Unit (“ICU”). (Id.) When the July 15

mask requirement was adopted, data from the prior week showed that 87% of the State’s ICU beds

were full. (Id.) As of July 24, 2020, the number of reported cases of COVID-19 in the State was

74,365, the number of deaths 1,395, and the number of COVID-19 patients currently hospitalized

1,586. (Id. ¶ 6.)

According to the Centers for Disease Control and Prevention (“CDC”), the virus that

causes COVID-19 is thought to spread mainly from person to person, between people who are in

close contact with one another or through respiratory droplets produced when an infected person

4
 DOCUMENT 26

coughs or sneezes. (Exhibit 14, Harris Aff. ¶ 14.) The same organization reports that a person who

is non-symptomatic may be able to spread the disease and that the virus causing COVID-19

appears to be spreading easily and sustainably. (Id.)

Additionally, according to the CDC, covering mouths and noses with filtering materials,

such as a mask or face covering, can help reduce transmission of COVID-19 infections. (Exhibit

14, Harris Aff. ¶15.) An individual wearing a face covering serves two purposes: personal

protection against inhalation of harmful pathogens and particulates, and source control to prevent

exposing others to infectious microbes that may be expelled during respiration. (Id.)

According to the CDC, wearing a mask or facial covering is particularly important in

settings where social distancing cannot be consistently maintained. (Exhibit 14, Harris Aff. ¶ 16.)

Social distancing involves physically distancing oneself from others by at least six feet in order to

reduce the risk of spreading droplets from the mouth or nose of one person to another, thus

reducing the risk of transmission of COVID-19. (Id.) As a result, the July 15 order requires wearing

a mask or other facial covering only within six feet of a person from another household in certain

specified places where groups of people are gathered. (Id.; Exhibit 13, Order § 2.)

B. State Health Officer Dr. Scott Harris Addresses the COVID-19 Pandemic Through a
Series of Emergency Rules from March 20, 2020 through May 21, 2020.

On March 19, 2020, Dr. Harris issued an order, and then an amended version of that order

on March 20, 2020, of statewide application suspending certain public gatherings. (Exhibit 14,

Harris. Aff. ¶ 7; Exhibit 3.) The March 20, 2020 order was issued as an emergency rule and was

filed with the Legislative Services Agency. (Id.) On March 21, 2020, the Office of the Alabama

Attorney General issued a Guidance Document for Law Enforcement communicating its

understanding of the legal basis for the State Health Officer’s authority to issue emergency rules

having the force and effect of law. (Exhibit 4.)

5
 DOCUMENT 26

Dr. Harris issued amended versions of the March 20, 2020 order on March 27, April 3,

April 28, May 8, and May 21, 2020. (Exhibit 14, Harris Aff. ¶ 8; Exhibits 5-8, 10.) When Dr.

Harris issued each of these orders, the State Committee of Public Health was not in session.

(Exhibit 14, Harris Aff. ¶ 9.) However, after each order that Dr. Harris issued, the Committee

ratified the emergency rules or orders that he had issued at its next monthly meeting. (Id.)

Dr. Harris’s orders were based on his judgment as a medical doctor and as the State Health

Officer about what would protect the public health and better enable Alabama’s health care system

to treat COVID-19 patients and reduce the total number of COVID-19 infections, hospitalizations,

and deaths. (Exhibit 14, Harris Aff. ¶ 17.) The orders at various times restricted the size of public

gatherings, required certain businesses to be closed to the public, and closed Alabama public

schools for in-person instruction for the remainder of the 2019-2020 school year. (See generally

Exhibits 3-8, 10.)

C. Beginning June 30, 2020, Dr. Harris’s Recommendations Were Issued as Emergency
Proclamations by Governor Ivey Pursuant to the Alabama Emergency Management
Act (“EMA”).

Beginning on June 30, 2020, Governor Ivey issued Dr. Harris’s amended health order (the

“Safer at Home Order”) as an incorporation to an emergency proclamation using her powers under

the Emergency Management Act. (Exhibit 14, Harris Aff. ¶ 10; Exhibit 11.) Governor Ivey’s June

30 proclamation contains the following findings:

I. Extending the statewide “Safer at Home” health order

A. Findings. For the following reasons, I find it necessary to extend the statewide
“Safer at Home” health order through an exercise of my powers under the
Emergency Management Act.

1. The Emergency Management Act empowers me to take this action because

doing so will, among other applicable grounds, “promote and secure the safety
and protection of the civilian population.” Ala. Code § 31-9-8(a)(5).

6
 DOCUMENT 26

a. COVID-19 remains a serious public health threat. The best information available
confirms that COVID-19 is a highly contagious virus that can cause serious
illness and death. It can be especially serious or deadly for people over 65 years
of age or people with underlying health conditions. Experts predict that it could
take many months to develop an effective vaccine or treatment.

b. At the same time, the initial measures states took to respond to COVID-19 are
not sustainable over the long run. Widescale business closures and stay-at-home
orders carry significant costs. They impede business investment and expansion.
They reduce tax revenues that fund vital public services. And most importantly,
they prevent working people from supporting their families. In many ways,
public health can suffer as the economy suffers.

c. The attached Safer at Home order—which is virtually identical to the Safer at

Home order currently in effect—embodies a balanced approach to promoting
and securing our civilian population’s physical and economic well-being. For
every sector of our economy, the Safer at Home order allows businesses to
resume operation if—but only if—they adopt practices to reduce the spread of
COVID-19.

2. Extending the Safer at Home act likely requires action by me under the
Emergency Management Act to comply with state-law procedures governing
emergencies.

a. The Safer at Home order currently in effect is the eighth amendment to an

emergency rule first adopted by the State Health Officer, acting on behalf of the
State Board of Health, on March 17, 2020. The legal name of that initial
emergency rule was “Order of the State Health Officer Suspending Certain
Public Health Gatherings Due to Risk of Infection by COVID-19.” Every
amendment to that initial rule, including the current Safer at Home order, has
borne the same name.

b. Under the Alabama Administrative Procedure Act, emergency rules “may be

effective for a period of not longer than 120 days and shall not be renewable.”
Ala. Code § 41-22-5(b)(1). Indeed, the Act specifically prohibits an agency
from adopting “the same or substantially similar emergency rule within one
calendar year from its first adoption unless the agency clearly establishes it
could not reasonably be foreseen during the initial 120-day period that such
emergency would continue or would likely reoccur during the next nine
months.” Id. § 41-22-5(b)(2).

c. The State Health Officer’s authority to adopt a COVID-19-related health order

will arguably expire on July 15, 2020, which is 120 days after March 17, 2020.
Because it is reasonably foreseeable that the threat of COVID-19 will continue
or will likely reoccur during the nine months following July 15, 2020, the State
Health Officer arguably will lack authority under the Administrative Procedure

7
 DOCUMENT 26

Act (beginning that day) to adopt emergency rules to mitigate the spread of
COVID-19.

d. At the same time, the uncertainties of the COVID-19 pandemic will require
COVID-19-related rulemaking to be done on an emergency, ad hoc basis for
longer than the 120-day emergency period contemplated by the Administrative
Procedure Act. The Governor’s powers under the Emergency Management Act
allow the flexibility to undertake such rulemaking for as long as a declared state
public health emergency is in effect.

(See Exhibit 11 § I.) The June 30 proclamation incorporates the Safer at Home Order and

“promulgate[s] that order as an order, rule, or regulation under the applicable provisions of the

Emergency Management Act. See, e.g., Ala. Code §§ 31-9-6(1) & 31-9-13.” (Id. § I.B.) The

proclamation states that the order is enforceable by the law-enforcing authorities of the state

pursuant to Alabama Code §§ 31-9-14 and 31-9-22. (Id.)

Because the June 30 and following July 15 orders were not issued as emergency rules by

Dr. Harris, but were rather issued by Governor Ivey under the EMA, they were not subsequently

presented to the State Committee of Public Health for ratification. (Exhibit 14, Harris Aff. ¶ 10.)

D. On July 15, 2020, Governor Ivey Issued the Mask Requirement Challenged in this
Lawsuit By Means of Another Emergency Proclamation Under the EMA Amending
the Safer at Home Order.

On July 15, 2020, with 87% of the State’s ICU beds full, Governor Ivey issued another

emergency proclamation amending the Safer at Home order to require facial coverings to be worn

on a statewide basis. (Exhibit 14, Harris Aff. ¶ 5; Exhibit 13.) The proclamation states:

Effective July 16, 2020 at 5:00 P.M., each person shall wear a mask or other facial
covering that covers his or nostrils and mouth at all times when within six feet of a
person from another household in any of the following places: an indoor space open
to the general public, a vehicle operated by a transportation service, or an outdoor
public space where ten or more people are gathered.

(Exhibit 13, Order § 2.) The requirement is subject to numerous exceptions, including an

exemption for any person six years of age or younger or any person with a medical condition or

8
 DOCUMENT 26

disability that prevents him or her from wearing a facial covering. (Id. § 2.a.(i), (ii).) There are also

exemptions for those engaged in voting or when it is necessary to come within six feet of a person

from another household in order to provide or obtain access to religious worship. (Id. § 2.d.) The

Safer at Home Order currently in effect is set to expire July 31, 2020 unless extended, rescinded,

or modified in writing before that time. (Id. § 20.)

The July 15 proclamation incorporates Dr. Harris’s recommendation and judgment about

what will protect the public health and better enable Alabama’s health care system to treat COVID-

19 patients and reduce the total number of COVID-19 infections, hospitalizations, and deaths.

(Exhibit 14, Harris Aff. ¶ 17.) In particular, the CDC recommends wearing a mask or facial

covering in settings where social distancing, i.e. six feet or more of physical distance, cannot be

consistently maintained. (Id. ¶¶ 15-16.) According to the CDC, covering mouths and noses with

filtering materials, such as a mask or face covering, can help reduce transmission of COVID-19

infections by protecting against inhalation of harmful pathogens and particulates and preventing

those infected from expelling microbes during respiration. (Id.)

E. Plaintiffs’ Lawsuit and Allegations of Personal Injury.

Nine days after Governor Ivey’s mask order was issued—and seven days before it expires

unless renewed—Plaintiffs filed suit. Their allegations as to how the mask requirement personally

injures Plaintiffs consist entirely of the following six paragraphs:

11. The Plaintiffs are directly affected by the Proclamation and Order, as they are
located within the boundaries of the State of Alabama and, during times,
interface with the public at distances of less than six feet.

12. Plaintiff Munza is a retired sheriff’s deputy and interfaces with the general
public in his normal daily life, oftentimes within six feet of another individual.

13. Plaintiff Lewis is a retired sheriff’s deputy and interfaces with the general public
in his normal daily life, oftentimes within six feet of another individual.

9
 DOCUMENT 26

14. Plaintiff Mathis is a real estate agent who interfaces with the general public in
her personal and professional life, oftentimes within six feet of another
individual.

15. All other individuals currently located in Alabama are similarly situated and
affected by said Proclamation and Order.

16. Said Proclamation and Order are illegal.

(Compl. ¶¶11-16.) Plaintiffs seek an ex parte Temporary Restraining Order (“TRO”) as well as a

Preliminary and Permanent Injunction.

Argument
Plaintiffs’ claim is that Dr. Harris lacked statutory authority to issue emergency health

orders under the Administrative Procedure Act (“APA”) and Governor Ivey lacked statutory

authority to mandate the wearing of masks under the EMA. Although Plaintiffs’ fail to allege

standing or to plead any claim that would fall under an exception to Defendants’ sovereign

immunity, Defendants begin their argument by explaining the statutory authority for their actions

as that is the sole basis of Plaintiffs’ Complaint. Plaintiffs seek only prospective relief, and

therefore could only challenge Governor Ivey’s issuance of the July 15 mask order currently in

effect under the EMA. Nevertheless, Defendants will set out the statutory basis for Dr. Harris’s

emergency orders as well as Governor Ivey’s emergency proclamations below.

A. Governor Ivey and Dr. Harris Acted with Statutory Authority at All Times in Issuing
Orders Related to Controlling the Spread of COVID-19 in Alabama.

i. Dr. Harris’s Health Orders from March 17, 2020 to May 21, 2020 Were
Validly Issued as Emergency Rules Under the APA.

The State Health Officer possesses statutory authority to issue emergency rules that have

the force and effect of law under the APA. The Alabama Code gives the Alabama Department of

Public Health the authority to make rules that have the force of law:

The State Board of Health shall have authority and jurisdiction:

10
 DOCUMENT 26

...

(6) To adopt and promulgate rules and regulations providing proper methods and
details for administering the health and quarantine laws of the state, which rules
and regulations shall have the force and effect of law and shall be executed and
enforced by the same courts, bodies, officials, agents and employees as in the case
of health laws, and a quorum, as provided for by the constitution of the Medical
Association of the State of Alabama, shall be competent to act.

Ala. Code § 22-2-2(6) (emphasis added). The knowing violation of a rule or regulation issued by

the State Board of Health is punishable as a misdemeanor. Ala. Code § 22-2-14.

While § 22-2-2(6) references the powers of the State Board of Health, the State Health

Officer can exercise these powers when the State Board of Health is not in session. “[E]xcept when

the State Board of Health is in actual session assembled,” the State Committee of Public Health

possesses “all the prerogatives and powers and duties heretofore prescribed by law for the State

Board of Health and shall act for said board.” Ala. Code § 22-2-5; see also Ala. Code § 22-2-6

(“When the State Board of Health is not in session, the State Committee of Public Health shall act

for said board and have and discharge all the prerogatives and duties of said board, including the

adoption and promulgation of rules and regulations.”). “When the State Committee of Public

Health is not in session, the State Health Officer, as executive officer of the Department of Public

Health, shall act for said committee and shall have and discharge all the prerogatives and duties of

said committee.” Ala. Code § 22-2-8 (emphasis added).

Dr. Harris was acting in this capacity as State Health Officer when the State Committee of

Public Health was not in session when he issued his emergency rules. (Exhibit 14, Harris Aff. ¶

9.) The Alabama Administrative Code provides that “[i]f the State Health Officer finds that there

is an immediate danger to the public health, safety or welfare which requires the adoption of a rule

with less than 35 days’ notice . . . and so states in writing his reasons for that finding, the State

Health Officer may proceed without prior notice or hearing, or any abbreviated notice and hearing

11
 DOCUMENT 26

that he finds practical, and adopt an emergency rule.” Ala. Admin. Code § 420-1-2-.07(e); see also

Ala. Code §§ 41-22-5(b) (authorizing state agencies to issue emergency rules if there is an

“immediate danger to the public health, safety, or welfare”).

This does not mean that the State Health Officer’s authority to adopt emergency rules when

the Committee is not in session is unchecked. When the State Health Officer exercises authority

otherwise possessed by the Committee when they are not in session, “[h]e shall report his actions

to the committee at its next meeting after such action is taken, and such action of the State Health

Officer shall then be subject to confirmation or modification by the committee.” Ala. Code § 22-

2-8. Dr. Harris in fact reported each emergency order issued at the Committee’s next monthly

meeting, and after each report the Committee ratified the emergency orders adopted by Dr. Harris.

(Exhibit 14, Harris Aff. ¶ 9.)

The Supreme Court of Alabama has expressly held that the rulemaking authority granted

to the State Department of Health in § 22-2-2(6) was a valid delegation of power by the Legislature.

See Parke v. Bradley, 86 So. 28, 30-31 (Ala. 1920); see also id. at 31 (stating “the implied

limitation against the delegation of the lawmaking power was never intended to prevent

Legislatures from authorizing their own appointed agencies to make such minor rules and

regulations as are necessary or appropriate for the administration and enforcement of the general

laws of the state.”). And the Alabama Court of Criminal Appeals has upheld convictions for

violations of rules and regulations issued under § 22-2-2(6). See Congo v. State, 409 So. 2d 475,

478-79 (Ala. Crim. App. 1981); see also id. at 478 (“The rules and regulations adopted by the

Board [of Health] have the force and effect of law, Ala. Code s 22-2-2(6) (1975), and are properly

the subject of judicial notice by the courts of Alabama.”).

12
 DOCUMENT 26

Under the APA, ordinary rulemaking requires a proposed rule to be submitted for public

notice and comment in the Alabama Administrative Monthly at least 35 days prior to adoption of

the rule. See Ala. Code § 41-22-5(a). However, the APA authorizes administrative agencies to

issue emergency rules “if an agency finds that an immediate danger to the public health, safety, or

welfare requires adoption of a rule upon fewer than 35 days’ notice . . . .” Ala. Code § 41-22-

5(b)(1). As stated above, the State Health Officer possesses the authority to issue emergency rules.

Emergency rules “shall become effectively immediately, unless otherwise stated in the rule, upon

the filing of the rule and a copy of the written statement of the reasons therefor with the Legislative

Services Agency, Legal Division, and the secretary of the agency.” Id. The first page of each

emergency rule issued by Dr. Harris reflects that it was stamped as received and certified as an

emergency rule with the Legislative Services Agency. (See Exhibits 3-8, 10.)

An emergency rule may be effective for no more than 120 days, and the APA prevents an

agency from adopting “the same or a substantially similar emergency rule within one calendar year

from its first adoption unless the agency clearly establishes it could not reasonably be foreseen

during the initial 120-day period that such emergency would continue or would likely reoccur

during the next nine months.” Ala. Code § 41-22-5(b)(2). As expressly acknowledged in Governor

Ivey’s June 30 emergency proclamation, Dr. Harris’s emergency rulemaking power under the APA

was arguably set to expire on July 15, 2020—120 days from the March 17 and March 20

emergency rules first adopted by Dr. Harris. (Exhibit 11 § I.A.2.a.-b.)

ii. Beginning June 30, 2020, Dr. Harris’s Safer at Home Order Proceeded as a
Recommendation of the State Health Officer to the Governor for the
Prevention of Disease But Was Given the Force of Law by the Governor
Pursuant to the EMA.

Although Dr. Harris’s emergency rulemaking powers arguably expired July 15, the State

Health Officer possesses statutory authority to “keep himself informed in regard to all diseases

13
 DOCUMENT 26

which may be in danger of invading the state and, as far as authorized by law, take prompt

measures to prevent such invasions . . . and submit to the Governor and Legislature such

recommendations as he deems proper to control such outbreaks.” Ala. Code § 22-2-8 (emphasis

added). As Governor Ivey’s June 30, 2020 proclamation expressly states, she adopted Dr. Harris’s

statutory “recommendation” of the Safer at Home Order and promulgated it as an enforceable

order, rule, or regulation under the EMA. (Exhibit 11 § I.B.) The current mask requirement

challenged in this lawsuit was issued on July 15 by another emergency proclamation of Governor

Ivey under the EMA further amending the Safer at Home Order. (Exhibit 13.) Contrary to

Plaintiff’s threadbare assertion, (Compl. ¶ 43), Governor Ivey possesses statutory authority under

the EMA to issue the statewide mask mandate to prevent the spread of COVID-19.

Under the EMA, the Governor may declare a state of emergency by issuing a proclamation

with findings that a “public health emergency has occurred or is reasonably anticipated in the

immediate future within this state and that the safety and welfare of the inhabitants of this state

require an invocation of” gubernatorial emergency powers. Ala. Code § 31-9-8(a). A state public

health emergency includes “[a]n occurrence or imminent threat of an illness or health condition

that . . . [i]s believed to be caused by . . . [t]he appearance of a novel or previously controlled or

eradicated infections agent or biological toxin” or “[p]oses a high probability of . . . [w]idespread

exposure to an infectious or toxic agent that poses a significant risk of substantial future harm to a

large number of people in the affected population.” Ala. Code §§ 31-9-3(4)(a)(2), -3(4)(b)(3). The

definition of “state of emergency” also includes an “epidemic” that causes both “extreme peril to

the safety of persons and property within the state” and conditions that “by reason of their

magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and

facilities of any single county, city and county, or city.” Ala. Code § 31-9-3(5).

14
 DOCUMENT 26

Governor Ivey’s initial declaration of a state of emergency on March 13, 2020, satisfied

these conditions for a state of emergency, noting “the State Health Officer has reported the

appearance of the 2019 novel coronavirus known as COVID-19 in the State of Alabama,” and

that “the appearance of COVID-19 in the State indicates the potential of widespread exposure to

an infectious agent that poses significant risk of substantial harm to a large number of people.”

(See Exhibit 2 at 1.) Governor Ivey further stated, “I find that COVID-19 cases could overwhelm

the health care facilities and personnel of this State and undermine their ability to deliver patient

care in the traditional, normal, and customary manner . . . .” (Id.) Because a state of emergency

under the EMA lasts 60 days “unless the Governor extends the emergency by proclamation,” Ala.

Code § 31-9-8(a), Governor Ivey extended the March 13 state of emergency on May 8, 2020, and

again on July 2, 2020. (Exhibit 9 § IV.; Exhibit 12 § II.)

When the Governor declares a state of emergency, she acquires substantial powers. See

Ala. Code §§ 31-9-6, -8. Plaintiffs do not allege Governor Ivey had no basis to declare a state of

emergency in response to COVID-19, but rather allege “there is no statutory authority that can be

construed to empower the Governor to mandate the wearing of a mask under any circumstances.”

Compl. ¶ 43. But there is ample statutory for this requirement under the plain meaning of the EMA.

See Ex parte Ankrom, 152 So. 3d 397, 409 (Ala. 2013) (“In ascertaining the legislature’s intent in

enacting a statute, this Court will first attempt to assign plain meaning to the language used by the

legislature.”). In addition, the EMA provides that its provisions “shall be construed liberally in

order to effectuate its purpose.” Ala. Code § 31-9-23.

The Governor possesses statutory authority to require a statewide mask mandate under the

following emergency powers granted to her under the EMA:

(1) To make, amend, and rescind the necessary orders, rules, and regulations to
carry out the provisions of this article within the limits of the authority conferred

15
 DOCUMENT 26

upon him or her in this article, with due consideration of the plans of the federal
government.

(3) In accordance with such plan and program for the emergency management of
this state, to ascertain the requirements of the state . . . for food or clothing or other
necessities of life in the event of disaster or emergency and to plan for and procure
supplies, medicines, materials, and equipment for the purposes set forth in this
article.

(4) To make, amend, and rescind the necessary orders, rules, and regulations
looking to the direction or control of . . . the conduct of civilians and the movement
or cessation of movement of pedestrians and vehicular traffic, public meetings or
gatherings . . . .

(12) To take such action and give such directions to state and local law-enforcement
officers and agencies as may be reasonable and necessary for the purpose of
securing compliance with the provisions of this article and with the orders, rules,
and regulations made pursuant thereto.

Ala. Code §§ 31-9-6(1), (3), (4), (12) (emphasis added). In addition:

(1) To enforce all laws, rules, and regulations relating to emergency management
and to assume direct operational control of all emergency management forces and
helpers in the state.

(5) To perform and exercise such other functions, powers and duties as are
necessary to promote and secure the safety and protection of the civilian population.

(6) To employ such measures and give such directions to the state or local boards
of health as may be reasonably necessary for the purpose of securing compliance
with the provisions of this article or with the findings or recommendations of such
boards of health by reason of conditions arising from enemy attack or threat of
enemy attack or otherwise.

Ala Code § 31-9-8(1), (5), (6) (emphasis added).

The mask mandate was issued as a “measure . . . reasonably necessary” to “secur[e]

compliance” with “the findings or recommendations” of the State Health Officer, § 31-9-8(6), and

is “necessary . . . to carry out the provisions of this article . . . with due considerations of the plans

of the federal government,” § 31-9-6(1), because it is intended to prevent the spread of COVID-

19 and implements the federal government’s (CDC) recommendation that facemasks be worn

16
 DOCUMENT 26

when socially distancing cannot be consistently maintained. The facemask requirement also falls

under the Governor’s authority to conserve hospital capacity by slowing the rate of infection and

thus preserve “equipment” and “other necessities of life.” Ala. Code § 31-9-6(3). It is also a

“necessary order[]” that “look[s] to the direction or control of . . . the conduct of civilians and . . .

public meetings or gatherings . . . .,” Ala. Code § 31-9-6(4), by requiring citizens to wear facemasks

under certain circumstances. And the facemask order is no broader than “necessary” because it

requires facemasks to be worn only when within six feet of another person from another household

and when in certain enumerated locations, and it includes exemptions for young children and those

who are medically prohibited from wearing a mask.

In sum, the July 15 mask requirement falls within the plain meaning of numerous

emergency powers granted to Governor Ivey during a state of emergency. If there is any doubt as

to the applicability of these provisions to the mask requirement, the EMA expressly states the

provisions “shall be construed liberally in order to effectuate its purpose.” Ala. Code § 31-9-23.

When applying such a statute liberally, “all reasonable doubts must be resolved in favor of” the

Governor. See Riley v. Perkins, 213 So. 2d 796, 798 (Ala. 1968). The July 15 mask requirement is

thus an order, rule, or regulation “promulgated by the Governor” and has “the full force and effect

of law when a copy thereof is filed in the office of the Secretary of State” and is punishable as a

misdemeanor crime. Ala. Code § 31-9-13, -22.

B. Because Plaintiff Can Prove No Set of Facts Establishing One of the Exceptions to the
State’s Sovereign Immunity Applies, the Court Lacks Subject-Matter Jurisdiction
Over Plaintiff’s Claims.

Article I, Section 14 of the Alabama Constitution of 1901 provides that “[t]he State of

Alabama shall never be made a defendant in any court of law or equity.” Ala. Const. Art. I, sec.

14. “Under § 14, the State and its agencies are absolutely immune from suit.” Lyons v. River Road

17
 DOCUMENT 26

Constr., Inc., 858 So. 2d 257, 261 (Ala. 2003). “Sovereign immunity is a jurisdictional bar that

deprives a court of subject-matter jurisdiction.” Ex parte Ala. Dep’t of Mental Health & Mental

Retardation, 937 So. 2d 1018, 1022 (Ala. 2006).

“Section 14 prohibits actions against state officers in their official capacities when those

actions are, in effect, actions against the State.” Haley v. Barbour Cty., 885 So. 2d 783, 788 (Ala.

2004). In determining whether an action against a state officer is, in fact, one against the State, a

court must consider such factors as the nature of the action and the relief sought. Id. There are

exceptions to § 14 immunity “applicable only to actions brought against State officials and not to

actions brought against the State or its agencies.” Ex parte Wilcox Cty. Bd. of Educ., 218 So. 3d

774, 778 (Ala. 2016) (“Wilcox I”).1 The six exceptions to sovereign immunity are as follows:

There are six general categories of actions that do not come within
the prohibition of § 14: (1) actions brought to compel State officials
to perform their legal duties; (2) actions brought to enjoin State
officials from enforcing an unconstitutional law; (3) actions to
compel State officials to perform ministerial acts; (4) actions
brought against State officials under the Declaratory Judgments Act,
Ala.Code 1975, § 6–6–220 et seq., seeking construction of a statute
and its application in a given situation; (5) valid inverse
condemnation actions brought against State officials in their
representative capacity; and (6) actions for injunction or damages
brought against State officials in their representative capacity and
individually where it was alleged that they had acted fraudulently,
in bad faith, beyond their authority, or in a mistaken interpretation
of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.2d
56, 58 (Ala.2006) (quoting Ex parte Carter, 395 So.2d 65, 68
(Ala.1980)).

Ex parte Ala. Dep’t of Fin., 991 So. 2d 1254, 1256-57 (Ala. 2008). The six categories of actions

not barred by § 14 “are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these

1
Defendants cite two separate cases involving the same state entity, and will designate the earlier
case as Wilcox I and the later as Wilcox II. See Ex parte Wilcox Cty. Bd. of Educ., 279 So. 3d 1135
(Ala. 2018) (“Wilcox II”).
18
 DOCUMENT 26

actions are simply not considered to be actions ‘against the State’ for § 14 purposes.” Ex parte

Moulton, 116 So. 3d 1119, 1132 (Ala. 2013) (internal quotation and citation omitted).

It follows that if Plaintiffs’ alleged injuries and the relief they seek do not fall under one of

these six exceptions, then their claims are barred by sovereign immunity. See Moulton, 116 So. 3d

at 1133 (“If [the plaintiff’s] claim for injunctive relief is to survive the bar of State immunity, we

must determine whether that claim falls within one of the recognized ‘exceptions’ to State

immunity set forth above.”); Bd. of Sch. Comm’rs of Mobile Cty. v. Weaver, 99 So. 3d 1210, 1221

(Ala. 2012) (“Because the plaintiffs have failed to demonstrate that this action falls within one of

the six recognized ‘exceptions’ to § 14 immunity, Superintendent Nichols is entitled to absolute

immunity [from claims for injunctive relief] in his official capacity as a State officer.”).

On a motion to dismiss, “the party asserting the defense of immunity[] b[ears] the burden

of demonstrating that [Plaintiff] can prove no set of facts establishing one of the exceptions to the

State’s sovereign immunity.” Ex parte Ala. Dep’t of Transp., 978 So. 2d at 21. Defendants can

easily satisfy this burden.

i. The Plaintiffs Claims for Injunctive Relief Against Defendants in their Official
Capacities Are Barred by Sovereign Immunity Because They Do Not Fall
Within the Exception for Actions Beyond the State Officials’ Authority Since
Defendants Acted Within Their Statutory Authority.

Plaintiff’s Complaint clearly alleges Defendants lacked any legal authority to issue a

statewide mask requirement. Compl. ¶¶ 19-43; see also id. ¶ 43 (“However, there is no statutory

authority that can be construed to empower the Governor to mandate the wearing of a mask under

any circumstances.”). Based on the facts alleged by Plaintiffs, their claims seek to fall under the

sixth exception to sovereign immunity stated above. See Ex parte Ala. Dep’t of Fin., 991 So. 2d at

1257. This sixth exception was reformulated in Moulton and stated as follows: “(6)(a) actions for

injunction brought against State officials in their representative capacity where it is alleged that

19
 DOCUMENT 26

they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of

law.” Ex parte Moulton, 116 So. 3d at 1141 (emphasis added). But Plaintiffs can prove no set of

facts that would show this exception to sovereign immunity applies. See Ex parte Ala. Dep’t of

Transp., 978 So. 2d at 21.

As discussed in Section A above, Governor Ivey and Dr. Harris had authority under

Alabama law to issue health orders, including the mask requirement. Thus, Plaintiffs can prove no

set of facts that would show Defendants acted beyond their authority or under a mistaken

interpretation of law in issuing emergency rules or proclamations as is required to come under the

sixth exception to sovereign immunity. See Cooper v. Ziegler, 193 So. 3d 722, 731-32 (Ala. 2015)

(stating “the circuit court had a duty to dismiss the Zieglers’ claim for injunctive relief insofar as

the Zieglers failed to demonstrate that [the State official] acted fraudulently, in bad faith, beyond

his authority, or under a mistaken interpretation of law . . . beyond such a showing, the Zieglers

failed to meet the requirements for injunctive relief so as to bypass § 14 immunity.”); Wilcox I,

218 So. 3d at 779 (“When a plaintiff seeks to enjoin conduct that he or she has not alleged is

fraudulent, in bad faith, beyond a State official’s authority, or done in a mistaken interpretation of

law, the plaintiff fails to invoke the sixth ‘exception’ to sovereign immunity, and the defendant

State official is entitled to the absolute immunity afforded by § 14.”).

As to Dr. Harris, Plaintiffs’ allegations that he violated the APA concern conduct that

occurred from March 17, 2020 to June 30, 2020, when Dr. Harris’s health orders ceased to be

issued as emergency rules under the APA. Since Plaintiffs challenge purely past conduct by Dr.

Harris and do not seek to enjoin him from any alleged ongoing violation of law, Dr. Harris is

entitled to sovereign immunity for the additional reason that purely past conduct does not fall under

20
 DOCUMENT 26

any exception to immunity. Thus, Defendants are entitled to sovereign immunity and the Court

lacks subject-matter jurisdiction over Plaintiffs’ claims.

ii. Defendant Alabama State Board of Health Is Entitled to Sovereign Immunity

Because There Is No Exception to Its Immunity.

Plaintiffs seek declaratory and injunctive relief prohibiting the enforcement of the mask

requirement. Yet, they have sued the Alabama Department of Public Health separately as a

defendant. The exceptions to sovereign immunity for declaratory and injunctive relief suits against

public officials allegedly acting without legal authority do not apply to suits against State agencies.

See Ex parte Ala. Dep’t of Fin., 991 So. 2d 1254, 1257 (Ala. 2008) (stating that exceptions “to

sovereign immunity apply only to actions brought against State officials; they do not apply to

actions against the State or against State agencies.”); Ala. Dep’t of Transp. v. Harbert Intern., Inc.,

990 So. 2d 831, 841 (Ala. 2008), abrogated in part on other grounds by Ex parte Moulton, 116

So. 3d 1119, 1141 (Ala. 2013) (“The purpose of the so-called ‘exception’ to § 14 allowing

declaratory-judgment actions is to give direction to State officers. Consistent with the other

‘exceptions’ to § 14 immunity, we hold that only State officers named in their official capacity—

and not State agencies—may be defendants in such proceedings.”).

Plaintiffs’ claims against the Alabama Department of Public Health are thus absolutely

barred by sovereign immunity. See Ala. Dept. of Public Health v. Noland Health Servs., Inc., 267

So. 3d 873, 875 (Ala. Civ. App. 2018) (holding declaratory judgment suit naming Alabama

Department of Public Health as sole defendant was subject to no exception to sovereign immunity

and absolutely barred). The claims against the Alabama Department of Public Health must be

dismissed for lack of subject-matter jurisdiction.

C. Plaintiffs Lack Standing Because They Fail to Plead Any Concrete or Particular
Injury Caused by the Mask Requirement.

21
 DOCUMENT 26

In the Complaint, Plaintiffs claim that they are “directly affected” by the Governor’s mask

requirement because they live in Alabama and, “during times,” they “interface with the public at

distances of less than six feet.” Doc. 2 ¶11. Plaintiffs do not allege that they have been subject to

enforcement of the mask requirement, or that they will be subject to enforcement of the mask

requirement, or that anything at all has happened to them as a result of the mask requirement.

Indeed, Plaintiffs have not even alleged that they have ever been forced to comply with the mask

requirement. Simply put, Plaintiffs’ conclusory allegation that they are “directly affected” by the

Governor’s order is insufficient to establish standing as a matter of Alabama law.

“Standing . . . turns on whether the party has been injured in fact and whether the injury is

to a legally protected right.” State v. Prop. at 2018 Rainbow Drive known as Oasis, 740 So. 2d

1025, 1027 (Ala. 1999) (internal citation omitted). “[W]ere a court to make a binding judgment on

an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority[.]”

Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1256 (Ala. 2004).

Moreover, under Alabama law, establishing standing “is not as simple as whether a justiciable

controversy exists.” Muhammad v. Ford, 986 So. 2d 1158, 1162 (Ala. 2007). Instead, the

individual Plaintiffs must “demonstrate that [they are] a proper party to invoke judicial resolution

of the dispute” and establish “actual, concrete and particularized injury in fact” to establish

standing under Alabama law. Id. (citing Town of Cedar Bluff, 904 So.2d at 1258–59).

Here, Plaintiffs have alleged no injury to a legally protected right. In fact, they have alleged

no injury at all. Instead, Plaintiffs simply allege that, “during times,” they sometimes come within

six feet of another individual in public. Doc. 2 ¶ 11. Such allegation describes no injury

whatsoever. Plaintiffs’ allegation that “[a]ll other individuals currently located in Alabama” are

“affected” by the mask requirement, Doc. 2 ¶ 15, does not establish standing, either. Under

22
 DOCUMENT 26

Alabama law, Plaintiffs must show that they, particularly, have suffered an injury in fact. See

Muhammad, 986 So. 2d at 1162. Because they have not done so, Plaintiffs’ Complaint is due to be

dismissed.

D. For the Same Reasons Plaintiffs Fail to Allege Governor Ivey or Dr. Harris Acted
Beyond Their Statutory Authority, Plaintiffs Fail to State a Claim Upon Which Relief
Can Be Granted.

The facts Plaintiffs allege, and conceivably hope to prove, are simple and are entitled to

the presumption of truth on a motion to dismiss. See Ex parte Ala. Dep’t of Transp., 978 So. 2d at

21. Governor Ivey has issued an order requiring Plaintiffs to wear masks under certain

circumstances, and Plaintiffs claim she had no authority to do so under State law. Compl. ¶¶ 39-

43. But these claims fail as a matter of law under Rule 12(b)(6) because “it appears beyond a doubt

that the plaintiff can prove no set of facts entitling him to relief.” Seals, 575 So. 2d at 1063.

Governor Ivey does have authority to issue emergency orders that have the force of law for

the reasons stated above in Section A, supra. Governor Ivey has statutory authority under the

provisions of the EMA identified above to require the public to wear masks under certain

circumstances to prevent the spread of COVID-19. Assuming the Court had jurisdiction to rule on

Dr. Harris’s emergency rules issued prior to June 30, 2020, these were validly issued as emergency

rules under § 41-22-5(b) of the APA and had the force of law under § 22-2-2(6). Therefore,

Plaintiffs fail to state a claim that Defendants were acting without any statutory authority under

Alabama law.

E. Plaintiffs’ Claims That Dr. Harris Violated the APA in the Past Are Moot Because
They Seek Only Prospective Relief and the Current Health Order Is Issued Pursuant
to Governor Ivey’s Authority Under the EMA.

Plaintiffs seek only prospective declaratory and injunctive relief preventing Defendants

from enforcing the mask requirement. Yet, Plaintiffs’ allegations that Dr. Harris’s health orders

23
 DOCUMENT 26

violated the APA concern purely past conduct that occurred between March 17, 2020, and ended

June 30, 2020. Dr. Harris’s recommendations beginning on June 30, 2020, are currently

enforceable solely by their incorporation and promulgation as an emergency order pursuant to

Governor Ivey’s powers under the EMA. Plaintiffs’ claims about Dr. Harris’s past compliance

with the APA are moot, and the Court accordingly lacks subject-matter jurisdiction over them.

“A case is moot when there is no real controversy and it seeks to determine an abstract

question which does not rest on existing facts or rights.” State ex rel. Eagerton v. Corwin, 359 So.

2d 767, 769 (Ala. 1977). A case that is moot lacks justiciability, and so “whether an action is moot

is also a matter of jurisdiction.” Davis v. Ala. Educ. Assoc’n, 92 So. 3d 737, 747 (Ala. 2012). This

Court lacks jurisdiction to give an advisory opinion as to whether Dr. Harris complied with the

APA in the past because the validity of the mask requirement is now a question of Governor Ivey’s

powers under the EMA. “The declaratory judgment statutes do not empower courts to decide moot

questions, abstract propositions or to give advisory opinions, however convenient it might be to

have the questions decided for the government of future cases.” Wallace v. Burleson, 361 So. 2d

554, 555 (Ala. 1978) (internal quotation and citation omitted). Since “Alabama courts do not give

opinions in which there is no longer a justiciable controversy,” Arrington v. State ex rel. Parsons,

422 So. 2d 759, 760 (Ala. 1982), the Court lacks subject-matter jurisdiction over Plaintiffs’ APA

claims against Dr. Harris.

Conclusion
For the reasons stated above, Plaintiffs’ Complaint should be dismissed and their motion

for a temporary restraining order should be denied.

Steve Marshall
Attorney General

/s Brad A. Chynoweth
Brad A. Chynoweth (CHY001)

24
DOCUMENT 26

A. Reid Harris (HAR389)

Assistant Attorneys General

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
(334) 242-7300
(334) 353-8400 (fax)
Brad.Chynoweth@AlabamaAG.gov
Reid.Harris@AlabamaAG.gov

Counsel for Governor Kay Ivey, State Health

Officer Scott Harris, and the Alabama State
Board of Health

25
 DOCUMENT 26

CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2020, I electronically filed the foregoing with the Court

via AlaFile which will send notification of such filing to the following:

Seth S. Ashmore
129 East Laurel Street
Scottsboro, AL 35768
(256) 574-2546
sethashmore@gmail.com

/s Brad A. Chynoweth
Counsel for Defendants

26