By Chris Villani

Law360 (January 20, 2021, 5:51 PM EST ) The First Circuit has shot down a challenge to Maine's mandatory COVID-19 quarantine order, writing in an opinion that the governor's response was reasonable given the spread of the potentially deadly virus ahead of the state's busy tourism season.

A three-judge panel on Tuesday declined to grant an injunction blocking Gov. Janet Mills from reinstating quarantine requirements for travelers, agreeing with a lower court that the governor had provided enough backing for the position that the order was the most effective means of protecting the state's 1.3 million residents at the time it was issued, in April.

The panel rejected the argument that the order, Executive Order No. 34, was harsher than those imposed by neighboring states but seemingly no more effective.

"A city that calls out extra snow removal crews to respond to a blizzard has not overreacted if the ensuing storm overwhelms its extraordinary response just because the neighboring town that gambled the storm would never come and so made no special effort to combat it was overwhelmed by the snowfall as well," Circuit Judge David J. Barron wrote for the unanimous court. "We must judge the response based on what was known at the time and not in hindsight."

The suit was filed by two campgrounds and three individuals who claimed that the quarantine amounted to "two weeks of house arrest" for people exercising their constitutional right to visit Maine.

Even though the order was replaced by a less restrictive one in June, the plaintiffs still appealed a federal court order denying an injunction because they argued that Mills could unilaterally reimpose the tougher order if she saw fit.

The First Circuit found that, applying the strictest form of judicial review, the governor still met her burden to show that hers was the most reasonable course of action ahead of a summer tourist season that in 2019 brought 22 million travelers to the state.

"Such an influx would be concerning to Maine in the face of the pandemic, moreover, because, as the District Court found, as of May 25, 2020, Maine had a total of only '391 critical care hospital beds and 318 conventional ventilators,' many of which were already occupied," Judge Barron wrote.

"We thus see no merit in the plaintiffs' contention that the governor failed to put forward 'an affirmative, competent evidentiary showing' that could suffice to establish the need for the self-quarantine requirement, if they mean to suggest by that contention that no evidence in the record supported the conclusion that the requirement constituted a means of serving Maine's compelling interests in managing the fallout from the pandemic," the judge added.

The court also found that because of the dynamic and constantly evolving nature of the health crisis, the fact that the original order was replaced did not moot the case.

The panel was not persuaded by the argument that Mills could have tried a quarantine recommendation, as opposed to a mandate.

"The plaintiffs put forth no evidence -- nor cite to any authority -- that would support the conclusion that the governor could not at that early stage of the pandemic rely on the common sense understanding that legal mandates induce greater compliance than do precatory requests," Judge Barron wrote.

A lawyer for the campgrounds, Tyler Smith of Libby O'Brien Kingsley & Champion LLC, told Law360 Wednesday that he was "proud of the courage that Bayley's Campground showed by challenging Maine's 14-day quarantine mandate" and noted that the lower-court ruling was the first to reject the rational basis standard of review set forth in an early 20th-century decision by Massachusetts' top court in Jacobson v. Massachusetts.

"The District Court's decision described the case as a civil rights action that has potential, and the governor relaxed the 14-day quarantine on the heels of that observation," Smith said, adding that the lower-court ruling concluded that "courts cannot give special deference to the government when COVID-19 restrictions infringe on constitutional rights."

Maine has seen more than 34,000 confirmed cases of the novel coronavirus since the pandemic began, resulting in more than 500 deaths.

Maine Attorney General Aaron Frey, whose office represented the state in the case, issued a statement saying Mills' executive order was sensible at a time when not much was known about COVID-19, other than that the disease was easily transmitted and possibly lethal.

"This measure was necessary not only to prevent the spread of the virus, but also to protect Maine's health care system, which is designed for a population of 1.3 million residents but which easily could have been overwhelmed in the face of a seasonal influx of many times that number," Frey said. "We are gratified that the court, in upholding the quarantine requirement, thoughtfully considered the scientific and medical evidence we submitted and correctly recognized that Maine's goals were compelling and that the requirement was carefully tailored to advancing those goals."

A Mills representative said Wednesday, "The governor is grateful to the Attorney General's Office for its vigorous defense of this necessary and effective public health measure."

The campgrounds are represented by Tyler Smith of Libby O'Brien Kingsley & Champion LLC.

The government is represented by Christopher C. Taub of the Maine Attorney General's Office.

The case is Bayley's Campground Inc. et al. v. Janet T. Mills, case number 20-1559, in the U.S. Court of Appeals for the First Circuit.

--Additional reporting by Brian Dowling. Editing by Karin Roberts.

Correction: This story has been updated to correct the author of the 1st Circuit's opinion.

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