CHARLESTON – Governor Jim Justice’s attorneys gave a federal judge several reasons to agree to his motion to dismiss a case contesting the governor’s internal masks mandate and corporate COVID-19 regulations.
Ben Bailey of Bailey and Glasser filed a response on Monday in the U.S. District Court for the Southern District of West Virginia on behalf of the judiciary to have their motion dismissed on Sept. 15 from Andrew and Ashley Stewart, the owners of Bridge Cafe and Putnam County Bistro.
The stewarts are challenging the judiciary’s executive orders that require the wearing of face masks or covers in indoor public places. The ordinance was first enacted on July 7th and expanded to include areas where social distancing was not possible on November 13th. The Stewarts also want the March 23 ordinance requiring residents to stay home except for essential services, as well as the business reopening guidelines published in May, to be found unconstitutional.
In response, Bailey wrote that the executive orders of the judiciary are allowed under the state code and the governor’s March 16 state of emergency for public health emergencies such as pandemics. Bailey also wrote that federal courts have no jurisdiction over state law as long as those laws do not violate the U.S. Constitution.
“The governor does what is right and right to protect public health and save lives,” wrote Bailey. “Even so, that claim fails for a more fundamental reason. This court, ‘as a federal court with limited jurisdiction, is barred from hearing cases in which the plaintiff is trying to get a state actor to comply with state law.” “
John Bryan, attorney for the Stewarts, argued in previous court records that a 1905 US Supreme Court ruling in Jacobson v Massachusetts should not apply to their case. In the Jacobson case, the Supreme Court ruled in favor of a Massachusetts law requiring residents to be vaccinated against smallpox, ruling that states have a legitimate interest in protecting the health of citizens.
While Bryan described the Jacobson decision as “long obscure” and the 1905 Supreme Court decision “wrong,” Bailey said Jacobson was the basis for several decisions made by federal courts during the COVID-19 pandemic, to limit the spread of the virus in states.
“This court and several other members of the circle have ruled that the Jacobson framework applies to public health emergencies,” Bailey wrote. “Since this court recently stated that Jacobson ‘provided the applicable standard in public health appeal cases’, it is certainly not a ‘relic of the law … long since abandoned’.”
The Stewarts argue in previous court records that their right to freedom of expression was violated as part of the first amendment after a social media post on their company’s Facebook page said they would not enforce the mask executive’s order, which led to testing by the Putnam County Health Department. They also argue that the act of not wearing a mask is a politically protected language.
“These actions do not violate the freedom of speech (of the Stewarts),” wrote Bailey. “(You) can still express your opinion on social media. Compliance with a constitutional executive order is not a punishment … While the (Stewarts) claim that refusing to wear a mask is somehow a political and social opinion, is that opinion is not “overwhelmingly obvious” so the first amendment would protect it. “
The Stewarts also allege that their rights to change due process fourteenth were violated by executive orders of the judiciary. They are demanding compensation for alleged violations of their civil rights and legal costs.
US District Judge Robert Chambers issued a November 24 order denying the Stewarts’ November 16 application for a restraining order and injunction against the judiciary’s request for a face mask for public buildings. In that decision, Chambers said that the governor’s powers in a state of emergency allow him to take steps to protect the public during a public health emergency or pandemic.
Steven Allen Adams can be reached at firstname.lastname@example.org