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Cases challenging Justice pandemic orders continue

CHARLESTON — A group of Morgantown bars that closed during the summer and fall by order of Gov. Jim Justice is appealing an order granting a motion to dismiss while a case filed by a Putnam County couple is on track for trial in 16 months.

Both cases challenge executive orders issued by Justice during the nearly 12-month state of emergency brought on by the spread of COVID-19 in West Virginia and the nation.

Wheeling attorney Martin Sheehan, now representing 30 Morgantown businesses and individuals, filed a motion Monday to appeal an order by U.S. District Judge John Bailey on Jan. 6 granting a motion to dismiss the case on behalf of Justice and the City of Morgantown.

The case now goes to the 4th Circuit Court of Appeals.

Bailey granted the motion to dismiss because the bars failed to state a claim that the court could grant relief for. Bailey said Justice was operating under constitutional authority to protect the state from the spread of the coronavirus.

“In times of emergency, the governor, whoever he or she may be, must act swiftly to protect the interests of the people of our state,” Bailey wrote. “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. Time is of the essence and lives are at stake.”

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. Bailey rejected all of those arguments.

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.

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.

Another case brought by two Putnam County businesses owners is scheduled to be heard April 2022 unless it is dismissed before then.

U.S. District Judge Robert Chambers issued a scheduling order last week in the case brought 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 and business reopening guidelines released in May ruled as unconstitutional.

The case, filed in the U.S. District Court for the Southern District of West Virginia, was filed by Putnam County attorney John Bryan on behalf of the Stewarts. Chambers already dismissed a motion for an injunction against Justice’s executive orders. Chambers has yet to rule on a motion to dismiss filed by Ben Bailey, attorney for Justice.

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 the act of not wearing a mask is politically protected speech.

(Adams can be contacted at sadams@newsandsentinel.com)

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