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CHARLESTON -- Attorneys for Gov. Jim Justice gave multiple reasons for a federal judge to grant their motion to dismiss a case challenging the governor’s indoor face mask mandate and COVID-19 regulations for businesses.
Ben Bailey of Bailey and Glasser filed a reply Monday in the U.S. District Court for the Southern District of West Virginia on behalf of Justice in support of their motion to dismiss a complaint filed Sept. 15 by Andrew and Ashley Stewart, owners of Bridge Cafe and Bistro in Putnam County.
The Stewarts are challenging Justice’s executive orders requiring the wearing of face masks or coverings in indoor public places. The order was first issued July 7 and expanded on Nov. 13 to include areas indoor when social distancing was not possible. The Stewarts also want the March 23 executive order requiring residents to remain at home except for essential services, as well as the business reopening guidelines released in May ruled as unconstitutional.
In his reply, Bailey wrote that Justice’s executive orders are allowed under state code and the governor’s state of emergency declared on March 16 to deal with public health emergencies, such as pandemics. Bailey also wrote federal courts have no jurisdiction over state law as long as those laws don’t violate the U.S. Constitution.
“The governor is doing what is right and lawful to protect the public’s health and save lives,” Bailey wrote. “Nevertheless, this contention fails for a more fundamental reason. This court ‘is precluded, as a federal court of limited jurisdiction, from hearing cases where the plaintiff is trying to (get) a state actor to comply with state law.'”
John Bryan, attorney for the Stewarts, argued in previous court filings that a 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts should not apply to their case. In the Jacobson case, the Supreme Court ruled in favor of a Massachusetts law that required residents to be vaccinated for smallpox, deciding that states have a vested interest in protecting the health of citizens.
While Bryan called the Jacobson decision “long obscure” and the decision by the high court in 1905 “misplaced,” Bailey said Jacobson was the basis for several decisions made by federal courts during the COVID-19 pandemic upholding attempts by states to limit the spread of the virus.
“This court and several others within the circuit have held that the Jacobson framework applies during public health emergencies,” Bailey wrote. “Since this court recently explained that Jacobson ‘provided the applicable standard in cases challenging public health orders,’ it certainly is not a ‘relic of jurisprudence … long since abandoned.'”
The Stewarts argue in previous court filings that their right to free speech under the First Amendment was violated after a social media post on their business’ Facebook page saying they would not enforce the mask executive order resulted in the scrutiny by the Putnam County Health Department. They also argue that the act of not wearing a mask is politically protected speech.
“These actions do not violate (the Stewarts) freedom of speech,” Bailey wrote. “(They) are still free to express their opinions on social media. Compliance with a constitutional executive order is not a punishment … While the (Stewarts) contend that refusing to wear a mask is somehow a political and social opinion, that opinion is not ‘overwhelmingly apparent’ such that it would be protected by the First Amendment.”
The Stewarts also allege their 14th Amendment rights to due process were violated by Justice’s executive orders. They are seeking damages for the alleged violation of their civil rights and court costs.
U.S. District Judge Robert Chambers issued an order Nov. 24 denying the Stewarts their Nov. 16 motion for a preliminary injunction and restraining order against Justice’s indoor face mask requirement for public buildings. In that ruling, Chambers said the governor’s powers in a state of emergency allow him to take action to protect the public during a public health emergency or pandemic.