Federal Judge Upholds Maine Ban on Tourists

Customers dine at the Hot Spot Diner in Wiscasset, Maine, on May 18. (AP Photo/Robert F. Bukaty, File)

BOSTON (CN) — Maine’s ban on out-of-state tourists and visitors who don’t own or rent property in the state survived a court challenge today, although the federal judge who denied a preliminary injunction said the case nevertheless “has potential” and suggested it might ultimately succeed.

The case challenged a coronavirus-related order by Governor Janet Mills that said no one can enter the state of Maine without self-quarantining for 14 days. The order also said that hotels, campgrounds and other lodging facilities can’t be used for quarantining, with the result that no one can enter the state who doesn’t already own or rent a home there in which to quarantine.

The plaintiffs — a group of would-be tourists and lodging facility owners — claimed the order violates their constitutional rights to travel and to due process.

Mills’ April 3 order went even further and prohibited travel to Maine by anyone who had been in a Covid-19 “hot spot,” even if they did own or rent property in the state. The “hot spots” included the states of New York, New Jersey and Connecticut, as well as Detroit and Chicago.

Tourists who violate the order can be sentenced to six months in jail and fined $1,000. Lodging businesses that violate the order can lose their licenses.

The order also required Maine residents who leave the state to quarantine for 14 days upon their return. One of the plaintiffs is a Maine resident with a home in Florida who challenged this requirement.

Tourism is a mainstay of Maine’s economy, accounting for 16% of the state’s jobs and annual income of $2.5 billion, according to the Maine Office of Tourism. Maine has a population of about 1.3 million but in a typical year it welcomes some 22 million tourists.

If it’s ultimately successful, the lawsuit “would kick open the doors to the state’s tourist season,” U.S. District Judge Lance Walker observed.

In denying a preliminary injunction, Walker said it wasn’t obvious — yet — that the order wasn’t narrowly tailored to serve a compelling purpose. But he also cautioned that “conditions on the ground can change quickly.”

“I am not persuaded, at this date, that the measure is not the least burdensome way to serve a compelling governmental interest, given all that we do now know,” Walker said.

“Although I consider it eminently reasonable for plaintiffs to earn a living and move about during a state of emergency, plaintiffs have not persuaded me that they are, at present, likely to be able to prove that the quarantine violates their constitutional rights … These are matters of public policy to be implemented by politicians and to be evaluated by voters, not by unelected judges, at least at this nascent stage,” he said.

However, Walker signaled that he was open to further evidence about the coronavirus as well as about the financial impact of the order on the lodging industry.

“While the business-entity plaintiffs have not yet suggested the quarantine will destroy them, perhaps that showing is only a matter of time,” he said. “However, at present, I do not have a solid basis to conclude that the concern for plaintiffs’ injuries exceeds the concern for public health or would justify a federal judge wading into the breach to dictate the most appropriate response to this pandemic insofar as the traveling public is concerned.”

Walker added that the case “pits a prudent fear of a possible explosion of infection against a competing ethic best described as the indomitable human desire to enjoy individual liberty and pursue one’s life and livelihood notwithstanding the sort of repercussions that keep epidemiologists and practitioners of the precautionary principle awake at night.

“Where the tipping point lies between these opposing values cannot be drawn with a bright line, but presumably there comes a time when prudent fears give way to the hopeful spirit that informs our migratory nature and the fair-mindedness that presumptively guides the application of police power.”

Mills, a Democrat, was elected in 2018 and is Maine’s first female governor. Walker, a Trump appointee, has been a federal judge since 2018.

The lawsuit separately attacks another provision of the order that allows lodging businesses in rural counties to fully open before businesses in other counties. The plaintiffs claim this violates due process and equal protection rights because it arbitrarily discriminates in favor of rural businesses. But that aspect of the lawsuit wasn’t part of the request for a preliminary injunction.

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