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Federal lawsuits tossed challenging W.Va. pandemic executive orders

CHARLESTON — Seemingly closing the books on legal efforts to overturn Gov. Jim Justice’s executive orders during the COVID-19 pandemic, two federal courts dismissed challenges to the governor’s authority under states of emergency.

U.S. District Judge Robert Chambers issued a judgment order Tuesday dismissing a lawsuit filed by Andrew and Ashley Stewart, owners of Bridge Cafe and Bistro in Putnam County.

The Stewarts challenged as being unconstitutional Justice’s executive orders requiring the wearing of face masks or coverings in the indoor public places and business reopening guidelines released in May. Chambers dismissed the lawsuit with prejudice, meaning that the case cannot be filed again on the same grounds.

“For obvious reasons, courts are not routinely asked to consider the constitutionality of public health restrictions designed to control the spread of a novel virus,” Chambers wrote. “But the past year has not been routine. As the novel coronavirus and its variants spread across the United States, public officials have issued numerous orders to protect the public and numerous lawsuits have followed.”

The Stewarts on Sept. 15 filed a complaint against the state, the Putnam County Commission and an employee of the Putnam County Health Department. They 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 the act of not wearing a mask is politically protected speech.

Justice issued his first COVID-19 mask mandate by executive order on July 7, 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.

Justice issued an executive order March 23 requiring residents to remain at home except for essential services to slow the spread of the coronavirus. At the end of April, Justice released guidelines though his Comeback Plan for business reopening rules.

“Although the court understands that the stay-at-home order and mask mandate have burdened many in the community, the orders are neither arbitrary nor unreasonable,” Chambers wrote. “The governor consulted with public health officials, relied on data provided by credible sources, and collaborated with other public agencies to protect the public from a virus that has already killed thousands of West Virginians. Therefore, the court finds that there is a rational basis for the orders and that they bear a real and substantial relation to this public health crisis.”

The decision by Chambers follows a decision by the U.S. Court of Appeals for the Fourth Circuit that granted a motion for voluntary dismissal Jan. 27 for a court case brought against Justice by 30 Morgantown businesses and individuals.

The businesses, represented by Wheeling attorney Martin Sheehan, filed a motion Jan. 25 to appeal an order by U.S. District Judge John Bailey, who on Jan. 6 granted a motion to dismiss the case on behalf of Justice and the city of Morgantown.

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. The suit challenged Justice’s executive orders over the summer closing bars in Monongalia County after a spike in COVID-19 cases linked to college students was detected. The closure orders were lifted in October.

So far, state and federal courts have upheld Justice’s executive order powers during a state of emergency, including the state county school re-opening plans, metrics, and color-coded map. Two cases filed by the West Virginia Education Association and the West Virginia chapter of the American Federation of Teachers challenging updated reopening plans are pending in Kanawha County Circuit Court, though Judge Carrie Webster denied a motion for an injunction against the plan.

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