Stewart v. Justice

• Decision Date: 09 February 2021
• Docket Number: CIVIL ACTION NO. 3:20-0611
• Citation: 518 F.Supp.3d 911
• Parties: Andrew STEWART, Ashley Stewart, Dinner's Ready, Inc., a West Virginia corporation, d/b/a Bridge Cafe & Bistro, Plaintiffs, v. James C. JUSTICE, II, in his official capacity as Governor of West Virginia, Rick Snaman, an individual, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

518 F.Supp.3d 911

Andrew STEWART, Ashley Stewart, Dinner's Ready, Inc., a West Virginia corporation, d/b/a Bridge Cafe & Bistro, Plaintiffs,

v.James C. JUSTICE, II, in his official capacity as Governor of West Virginia, Rick Snaman, an individual, Defendants.

CIVIL ACTION NO. 3:20-0611

United States District Court, S.D. West Virginia, Huntington Division.

Signed February 9, 2021

John H. Bryan, John H. Bryan, Attorneys at Law, Union, WV, for Plaintiffs.

Benjamin L. Bailey, Bailey & Glasser, Charleston, WV, Benjamin J. Hogan, Bailey & Glasser, Morgantown, WV, for Defendant James C. Justice, II.

Adam K. Strider, Jennifer E. Tully, Bailey & Wyant, Charleston, WV, for Defendant Rick Snaman.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendant Rick Snaman's "Motion to Dismiss with Prejudice" (ECF No. 13) and Governor James Justice's "Motion to Dismiss for Failure to State a Claim" (ECF No. 38). The motions are ripe for review. For the following reasons, the motions are GRANTED , and the case is DISMISSED WITH PREJUDICE.

I. BACKGROUND

On January 21, 2020, the Center for Disease Control confirmed the first case of the novel coronavirus in the United States. By March, the virus spread to West Virginia, leading Governor Justice to declare a State of Emergency and issue a "Stay at Home Order" via Executive Order 9-20. The order required all West Virginians to shelter in place unless performing an "essential activity," and all "non-essential" operations to temporarily cease. After Governor Justice lifted the Stay at Home Order, he issued the so-called "Mask Mandate" via Executive Order 50-20. This required "individuals to use face coverings (masks, bandannas, face shields, etc.) when in confined, indoor spaces, other than when in one's residence or while actively engaged in the consumption of food and/or beverage, and when not able to adequately social distance from other individuals who do not reside in the same household."

Andrew and Ashley Stewart are two of the many restaurant owners affected by the Orders. They closed their restaurant after Governor Justice issued the Stay at Home Order and reopened after the Governor lifted those restrictions. Upon reopening, Plaintiffs announced on Facebook that they would not be complying with the Mask Mandate, stating: "some of our staff have chosen to forego wearing a face covering. Reasons for their decisions are their own, but we can assure you that in no way do they have malicious intent for their community. We will also not turn guests away should they choose not to wear a mask themselves." (the "Facebook Post") Compl. ¶ 10, ECF No. 1. The Facebook Post quickly circulated around the community, generating thousands of comments and over 500 shares.

According to the Complaint, Defendant Rick Snaman, a Registered Sanitarian for the Putnam County Health Department, saw the Facebook Post and informed Plaintiffs that he would inspect the restaurant a few days later. Compl. ¶ 13. Plaintiffs allege that Snaman "informed them that as a result of the expressions and speech contained in their Facebook post, that they would be shut-down [sic] by the Putnam County Department of Health if they failed to comply with the Governor's mask mandate, pursuant to Executive Order No. 50-20." Id.

The Complaint further alleges that Snaman told local news outlets that the health department would close Plaintiffs' restaurant if they continued to ignore the Mask Mandate. Snaman is also alleged to have contacted the West Virginia Alcohol Beverage Control Administration seeking to revoke Plaintiffs' permit. On Friday July 10, 2020, Snaman arrived at Plaintiffs' restaurant and performed an onsite inspection. After this visit, Plaintiffs allege that they complied with the Mask Mandate but only "under the continued threat of closure." Compl. ¶ 11. On July 14, 2020, Snaman conducted a follow-up inspection to confirm that the restaurant remained compliant.

Plaintiffs initiated this suit on September 15, 2020, asserting three causes of action. Count One alleges that Snaman violated Plaintiffs' First Amendment rights by "threaten[ing] adverse regulatory action against their restaurant, by revoking their operation permits and/or closing them down, as well as subjecting them to immediate inspection and adverse comments in the media." Compl. ¶ 26. Plaintiffs voluntarily dismissed Count Two. ECF No. 31. Under Count Three, Plaintiffs ask the Court to bar enforcement of Executive Orders 9-20 and 50-20 and to declare them unconstitutional under the First Amendment and the Due Process Clause.¹

On November 16, 2020, Plaintiffs filed an "Emergency Motion for a Preliminary Injunction or Temporary Restraining Order" (ECF No. 23). They asked the Court enjoin enforcement of Executive Order 77-20, which superseded Executive Order 50-20 and imposed stricter face covering requirements. After a hearing in which all parties appeared, the Court found that Plaintiffs were unlikely to succeed on the merits and denied the motion. Order, ECF No. 36. Now Defendants ask the Court to dismiss the Complaint for failure to state a claim upon which relief may be granted.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) authorizes courts to dismiss complaints that fail to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Though the line between "plausible" and "implausible" is not always clear, it is well established that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Mere "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Courts are likewise not required to consider "unwarranted inferences, unreasonable conclusions, or arguments." Wahi v. Charleston Area Med. Ctr., Inc. , 562 F.3d 599, 615 n.26 (4th Cir. 2009). A court may grant a motion to dismiss "if, after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro , 178 F.3d 231, 244 (4th Cir. 1999).

III. DISCUSSION

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. 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. Despite having the opportunity to do so, neither the Fourth Circuit nor the Supreme Court have articulated a clear legal standard for these cases. Still, one case has emerged as controlling among other courts: Jacobson v. Commonwealth of Massachusetts 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905).

The plaintiffs in Jacobson challenged a board of health regulation requiring all adults to get a smallpox vaccination. Id. at 12-13, 25 S.Ct. 358. In reviewing the law, the Supreme Court counseled against overriding the legislature's power to decide the best way to protect public safety. Id. at 30, 25 S.Ct. 358. Jacobson teaches that "[o]ur Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect." S. Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring) (citing Jacobson , 197 U.S. at 38, 25 S.Ct. 358 ) (internal quotations omitted). Accordingly, the standard of review is deferential.

Although Jacobson is more than a century old, recent case law shows that it is still good law. Several circuit courts have applied the Jacobson framework to COVID-19 related challenges. See, e.g., Big Tyme Investments, L.L.C. v. Edwards , 985 F.3d 456, 467–69 (5th Cir. 2021) ; League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer , 814 F. App'x 125, 127 (6th Cir. 2020) ; Ill. Republican Party v. Pritzker , 973 F.3d 760, 763 (7th Cir. 2020) ; Robinson v. Att'y Gen. , 957 F.3d 1171, 1179-80 (11th Cir. 2020). One circuit court even held that the "failure to apply the Jacobson framework produced a patently erroneous result." In re Rutledge , 956 F.3d 1018, 1028 (8th Cir. 2020).

Several district courts within the Fourth Circuit have followed suit. Judge Bailey in the Northern District of West Virginia denied a request for a preliminary injunction challenging Governor Justice's executive orders, finding that "the starting point must be Jacobson ...." AJE Enter. LLC v. Justice , No. 1:20-CV-229, 2020 WL 6940381, Doc. 28 at 3 (N.D. W. Va. Oct. 27, 2020). Judge Blake in the District Court of Maryland came to the same conclusion in another COVID-19 related case when denying a preliminary injunction and granting a motion to dismiss. Antietam Battlefield KOA v. Hogan , 461 F. Supp. 3d 214, 228 (D. Md. 2020), appeal dismissed sub nom. , No. 20-1579, 2020 WL 6787532 (4th Cir. July 6, 2020) ; Antietam Battlefield KOA v. Hogan , No. CV CCB-20-1130, 501 F. Supp. 3d 339, 342–44, (D. Md. Nov. 18, 2020). And Judge Gibney in the Eastern District of Virginia reached this conclusion in Tigges v. Northam , 473 F.Supp.3d 559, 570–71 (E.D. Va. 2020).

Plaintiffs argue that "the Supreme Court has recently clarified and minimized" Jacobson's applicability. They first cite to Justice Alito's dissent in Calvary Chapel...