Stewart v. Justice

• Decision Date: 24 November 2020
• Docket Number: CIVIL ACTION NO. 3:20-0611
• 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

502 F.Supp.3d 1057

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 November 24, 2020

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

On November 16, 2020, Plaintiffs filed an "Emergency Motion for Preliminary Injunction and/or Temporary Restraining Order." ECF No. 23. Defendant Putnam County Commission was subsequently dismissed from the case pursuant to voluntary dismissal by the parties. ECF No. 20. Defendants Snaman and Justice responded on November 19, 2020, ECF Nos. 27, 29, 30, and Plaintiffs filed their Reply, ECF No. 32, the next day. On Monday November 23, 2020, the Court held a hearing in which counsel for all parties appeared. The matter is now ripe for review. For the reasons stated at the hearing and below, the Court DENIES the Motion.

I. BACKGROUND

Plaintiffs seek an injunction "prohibiting criminal charges and/or enforcement against them for violations of the West Virginia Governor's ‘Mask Mandate.’ " Pls.' Mot. 1. The so-called "Mask Mandate" is contained within Executive Order No. 77-20 ("EO 77-20") which, among other things, requires: (1) "all individuals age 9 and over ... [to] wear an adequate face covering when in confined, indoor spaces where other individuals may be present, regardless of one's perceived ability to social distance from other individuals[;]" and (2) businesses to "post adequate signage notifying patrons of the requirements of this Order, and [ ] enforce the same on their premises." EO 77-20, ECF Nos. 23-1, 29-2.

Plaintiffs also raise several arguments regarding the Governor's "Stay at Home Order," Executive Order 9-20 ("EO 9-20"), which has been amended by numerous other executive orders. See Exec. Orders 60-20, 58-20, 56-20, 25-20, 24-20, 22-20, 21-20. EO 9-20 required all West Virginia residents to "stay at home" unless performing an "essential activity," and all "non-essential" businesses and operations to temporarily cease. Plaintiffs asserted neither in the Motion nor in the hearing that they seek an injunction prohibiting enforcement of EO 9-20. But they do argue that EO 9-20 violates their substantive due process and equal protection rights. Consequently, the Court will broadly construe Plaintiffs' request for relief and address Plaintiffs' arguments below.

Finally, Plaintiffs' Motion also arises from a press conference held by the Governor announcing EO 77-20. There is nothing in the record containing a direct quote from the Governor, but the Plaintiffs characterize the Governor's statement as "mandating" all business owners "to call police on any individuals within their business premises who are not wearing masks," and that "if business owners do not call law enforcement, the business owners can then be arrested for obstruction." Pls.' Br. 14, ECF No. 24. Plaintiffs proffer a single news report in support of this characterization, which states:

Justice also signaled law enforcement, citing conversations with legal counsel.

If patrons don't follow the order, Justice told business owners to call the police. And if someone isn't following the mask mandate, they're obstructing justice, Justice said. The governor also said an obstruction of justice charge would apply to business owners/operators that are flaunting the rule.¹

According to Plaintiffs, this demonstrates that the Governor threatened to enforce EO 77-20 and that such enforcement would violate their constitutional rights.

II. LEGAL STANDARD

Given that Defendants have responded to Plaintiffs' request for relief through memoranda and at a hearing, the Motion can be treated as a preliminary injunction rather than a TRO. See Rule 65(a). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

III. DISCUSSION

Plaintiffs' suit raises several claims under the federal constitution, including claims under the First, Fourteenth, and Fourth Amendments. Those claims are properly before the Court under 42 U.S.C. § 1983, which permits federal courts to hear federal claims for injunctive relief brought against state officials. To the extent that Plaintiffs raise claims under state law,² those claims are barred under the Eleventh Amendment, which prohibits "a federal suit against state officials on the basis of state law ... when—as here—the relief sought and ordered has an impact directly on the State itself." Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 117, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

1. Likelihood of Success

Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) provides the applicable standard in cases challenging public health orders. 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 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, J., concurring) (citing Jacobson , 197 U.S. at 38, 25 S.Ct. 358 ) (internal quotations omitted). Accordingly, although courts generally have jurisdiction over constitutional challenges to public health measures, the standard of review is highly deferential. To invalidate an elected officials' action in response to a public health crisis, a plaintiff must show either (1) that it has "no real or substantial relation" to protecting public health, or (2) that it is "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Jacobson , 197 U.S. at 31, 25 S.Ct. 358.

Although Jacobson is more than a century old, recent case law shows that it is still good law. Chief Justice Roberts recently invoked the standard in a concurrence to the Court's denial of an application for injunctive relief against California Governor Gavin Newsom's executive order aimed at limiting the spread of COVID-19. See S. Bay United Pentecostal Church , ––– U.S. ––––, 140 S. Ct. 1613, 207 L.Ed.2d 154 (citing Jacobson, 197 U.S. at 38, 25 S.Ct. 358 ). In addition, several circuit courts have also applied the Jacobson framework to COVID-19 related restrictions. See, e.g., Robinson v. Attorney General , 957 F.3d 1171, 1179–80 (11th Cir. 2020) ; In re Rutledge , 956 F.3d 1018, 1027 (8th Cir. 2020) ; Adams & Boyle, P.C. v. Slatery , 956 F.3d 913, 925–27 (6th Cir. 2020) (petition for certiorari filed); Ill. Republican Party v. Pritzker , 973 F.3d 760, 763 (7th Cir. 2020).

Though the Fourth Circuit Court of Appeals has not directly addressed the standard of review for constitutional claims challenging health orders during the COVID-19 pandemic, several district courts within the circuit have followed the above decisions and applied Jacobson . For example, in the Northern District of West Virginia, Judge Bailey denied a request for a preliminary injunction challenging Governor Justice's executive orders, finding that "[w]ith regard to the first factor, likelihood of success on the merits, the starting point must be Jacobson ...." AJE Enter. LLC v. Justice , No. 1:20-CV-229, Doc. 28 at 3, 2020 WL 6940381 (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) ("Since the challenged orders are public health measures to address a disease outbreak, Jacobson provides the proper scope of review."), 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, ––– F.Supp.3d ––––, ––––, 2020 WL 6777590, at *2 (D. Md. Nov. 18, 2020). Several other judges in the Eastern District of Virginia have also reached this conclusion. See, e.g., Tigges v. Northam , 473 F.Supp.3d 559, 570 (E.D. Va. 2020).

Given the apparent consensus that Jacobson applies to challenges to COVID-19 related restrictions, the Court will apply that standard here. Accordingly, in order to show that they are likely to succeed merits, Plaintiffs must show that the Governor's executive orders either (1) it has "no real or substantial relation" to protecting public health, or (2) that it is "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." See Jacobson , 197 U.S. at 31, 25 S.Ct. 358.

A. Real or Substantial Relation

The Governor's orders have a "real or substantial relation" to a public health crisis. On March 17, 2020, West Virginia confirmed its first reported case of COVID-19. Aff. of Bill J. Crouch 1 at ¶14.³ Since then, the novel virus has infected over 41,000 West Virginians and killed at least 667.⁴ Nationwide, over 12 million cases have been reported and more than 246,000 Americans have died of the disease.⁵ These...