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Judge throws out pandemic orders challenge

CHARLESTON — A federal challenge to Gov. Jim Justice’s authority during the COVID-19 state of emergency was thrown out Tuesday, following three state-level challenges to Justice’s executive orders.

U.S. District Judge John Bailey issued an order Tuesday denying a motion for injunctive relief filed by 12 Morgantown bars and companies last month challenging an executive order from Justice closing bars in Monongalia County indefinitely to slow the spread of COVID-19 in the community.

“In times of emergency, the Governor, whoever he or she may be, must act swiftly to protect the interests of the people in our state. It is difficult to imagine a context where swift and broad action is more important than responding to a public health crisis the likes of which the world hasn’t seen in over a century,” Bailey wrote in his ruling. “Time is of the essence and lives are at stake.”

The bars filed suit Sept. 23 in the U.S. District Court for the Northern District of West Virginia in Clarksburg against Justice, the West Virginia Alcohol Beverage Control Administration, and the City of Morgantown over its own ordinances dealing with the coronavirus outbreak.

Wheeling attorney Martin Sheehan — representing the bar owners — accused Justice of violating the separation of powers between the branches of government, the procedural and substantive due process rights of the businesses, impairing their right to do business, and not providing compensation due to the losses sustained during the closing.

In his ruling, Bailey said the federal court prohibits it from granting injunctive relief based on the bar owners’ belief that the Governor is violating the state Constitution by substituting his executive orders for the lawmaking actions of the West Virginia Legislature. The emergency situation caused by the continued spread of the coronavirus created a situation where due process cannot always be guaranteed, and the businesses are currently allowed to be open.

“Essentially, the (bars) seek to erase the state’s response to the pandemic and enjoin the Governor and the West Virginia Alcohol Beverage Control Administration from enforcing and implementing executive orders that limit the operation of bars and restaurants in Monongalia County,” Bailey wrote in his ruling.

“They contend the Governor deprived them of a liberty and property because the executive orders allegedly cause the ‘shuttering (of) their businesses,'” Bailey continued. “But … their businesses are presently allowed to operate, and, even if they were not, that alone would not constitute deprivation entitled to due process protections.”

Bailey said the federal courts should only overturn state executive orders when the orders lack any relation to the protection of public health or represents a clear violation of rights under state and federal law.

“(The bar owners) do not allege (Justice’s) executive orders are unrelated to protecting public health, and only assert a liberty interest in their ability to run their respective businesses,” Bailey said. “Harm to business interests, however, is not a ‘plain, palpable invasion of rights’ under the Fourteenth Amendment.”

Bailey also said the bars were not owed any compensation for closing because they could open and serve food, though they would have to limit their occupancy. Not being allowed to serve only alcohol is not considered a taking of their property, Bailey said.

“The only interest that (the bar owners) contend that the Governor infringed upon was ‘their right to do business.’ But plaintiffs have no ‘right’ to a license to operate a private club or tavern, and the ‘right to do business’ has not been recognized as a constitutionally protected right,” Bailey wrote. “Their claims also ignore the grave nature of why the Governor issued a state of emergency and the specific authority vested in the executive during emergencies to ‘suspend or limit the sale, dispensing or transportation of alcoholic beverages.”

A spike in COVID-19 cases tied to returning students to WVU in July caused Justice to issue an executive order July 13 closing bars in Monongalia County for 10 days. That executive order was extended four times until the order was lifted on Aug. 31. By Sept. 2, Justice indefinitely closed all bars in Monongalia County after photographs emerged on social media showing long lines of WVU students at bars with little social distancing and few masks. The closure order was lifted Oct. 13.

“There is no public interest in attending bars when we are dealing with a pandemic, especially in counties experiencing surges of new COVID-19 cases,” Bailey said. “Doing so will only increase the spread of COVID-19, endangering not only the bar attendees but also their families and friends and the health care institutions in Morgantown which have to take care of the virus’ victims.”

This is the first unsuccessful federal challenge to Justice’s executive order authority in a state of emergency. Three previous lawsuits filed in the state court system against Justice’s executive orders have been dismissed for similar reasons.

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