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CHARLESTON -- The owners of a restaurant in Putnam County filed a response Monday to a motion to dismiss by attorneys for Gov. Jim Justice in a case seeking to overturn his indoor mask order, his earlier stay-at-home order, and the COVID-19 guidelines for businesses.
A court filing Monday in the U.S. District Court for the Southern District of West Virginia by attorneys for Andrew and Ashley Stewart, owners of Bridge Cafe and Bistro in Putnam County, responded to a motion to dismiss filed Dec. 7 by Justice.
The Stewarts filed a complaint against the state, the Putnam County Commission, and an employee of the Putnam County Health Department on Sept. 15. The business owners want the court to declare an executive order by Justice requiring the wearing of masks unconstitutional.
They also want the March 23 executive order requiring residents to remain at home except for essential services, as well as the business re-opening guidelines released in May ruled as unconstitutional. The Stewarts are seeking damages for the alleged violation of their civil rights and court costs.
The Stewarts allege their constitutional rights were violated by the July 7 mask order issued by Justice, which requires people to wear face masks or face coverings in all indoor public buildings. The order was amended Nov. 13 to require masks indoors even when people can socially distance from others, though the order has exceptions. They also claim their business was harmed by the stay-at-home order and the re-opening guidelines.
In their Dec. 7 motion to dismiss the case, attorneys for Justice argue that the Stewarts failed to make any claims in their court filings that would warrant a judge to rule in their favor. They also point to a Nov. 24 order from U.S. District Judge Robert Chambers 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 denying the (Stewarts) motion, the court acknowledged the critical nature of the Governor's executive orders," wrote Ben Bailey, attorney for Justice. "All of the plaintiff's efforts to state plausible claims are unsupported in law and undone by the fact that West Virginia's response to the COVID-19 pandemic has been substantially related to the government's compelling interest to protect the public's safety and wellbeing…"
In their response to the state's motion to dismiss, Stewart attorney John Bryan accused Justice of using his executive order authority during a state of emergency to act as both the executive and legislative branches.
"...The West Virginia Constitution does not allow for the West Virginia Governor to unilaterally create or change State 'law' to be enforced by county health inspectors or criminal law enforcement," Bryan wrote. "The Governor has taken unprecedented steps in exercising both the roles of the executive branch and the legislative branch for almost the entire period of time that the state Legislature has been out of session. In so doing, he has engaged in unprecedented restrictions against the plaintiffs' restaurant -- none of which were performed with state constitutional authority."
Chambers, in his Nov. 24 order denying the preliminary injunction requested by the Stewarts, may have tipped his hand in how he might rule on later motions. 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.
"The Governor's orders have a 'real or substantial relation' to a public health crisis," Chambers wrote. "...The Governor's measures are informed, based on science, and substantially related to the COVID-19 pandemic … It is not the Court's role to 'usurp the functions of another branch of government' in deciding how best to protect public health as long as the measures are not arbitrary or unreasonable."
A status conference between Justice and the Stewarts is scheduled for Monday, Feb. 1, 2021.