277 A.3d 937
Del.2022Background
- On Oct. 7, 2021 Jessica J. Facer filed a petition for a writ of mandamus in Superior Court seeking to compel Governor John C. Carney, Jr. to cease statewide COVID‑19 mandates and "uphold" the Delaware and U.S. Constitutions.
- Facer acknowledged the specific State of Emergency she challenged had ended July 12, 2021; later related emergency measures (including a school mask mandate) were lifted in February–March 2022.
- The Governor moved to dismiss, arguing the petition was moot and that mandamus was inappropriate because the Governor’s emergency actions were discretionary.
- The Superior Court granted the motion to dismiss; Facer appealed to the Delaware Supreme Court.
- The Delaware Supreme Court granted the Governor’s motion to affirm, holding the challenge to expired emergency orders was moot, refusing to issue an advisory opinion about hypothetical future pandemics, and finding mandamus unavailable because the Governor’s exercise of emergency powers is discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to expired emergency orders | Facer: merits remain; future pandemics keep controversy alive | Carney: challenged orders are no longer in effect; relief moot | Court: claims about expired orders are moot; no advisory opinion on hypothetical future pandemics |
| Availability of mandamus to compel Governor | Facer: Governor violated constitutional limits and must be compelled | Carney: mandamus requires a nondiscretionary duty; emergency powers are discretionary | Court: mandamus requires ministerial duty; Governor’s emergency powers are discretionary, so mandamus inappropriate |
| Justiciability of hypothetical future harms | Facer: possibility of another pandemic prevents mootness | Carney: speculative future events cannot preserve a present claim | Court: will not decide hypothetical scenarios or render advisory opinions |
| Challenge to ongoing Public Health Emergency | Facer: sought relief tied to ongoing emergency | Carney: plaintiff did not show a nondiscretionary duty owed to her | Court: Facer failed to establish a clear legal right to mandamus relief against discretionary executive action |
Key Cases Cited
- Clough v. State, 686 A.2d 158 (Del. 1996) (defines writ of mandamus and its requisites)
- Brittingham v. Town of Georgetown, 113 A.3d 519 (Del. 2015) (describes ministerial versus discretionary duties for mandamus)
- Stroud v. Milliken Enters., Inc., 552 A.2d 476 (Del. 1989) (courts will not render advisory opinions on moot questions)
- State v. Mancari, 223 A.2d 81 (Del. 1966) (establishes rule against advisory opinions)
- Colvin v. Inslee, 467 P.3d 953 (Wash. 2020) (rejecting mandamus to compel governor’s discretionary COVID‑19 emergency actions)