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Judge upholds W.Va. mask mandate

Morgantown bar appeals similar ruling to 4th Circuit

CHARLESTON — In his fifth court victory challenging his executive order authority during a pandemic state of emergency, a federal judge ruled Monday that Gov. Jim Justice’s mask mandate was reasonable. All while Morgantown bar owners appeal a similar ruling.

U.S. District Judge Robert Chambers released his written opinion order Tuesday evening in a case brought before the U.S. District Court for the Southern District of West Virginia by Andrew and Ashley Stewart, owners of Bridge Cafe and Bistro in Putnam County, denying their motion for a preliminary injunction against Justice’s indoor face mask requirement for public buildings.

Chambers heard oral arguments Monday between the Stewarts and Ben Bailey, the attorney representing the Governor’s Office.

The Stewarts, who filed their case in September, allege their constitutional rights were violated by the July 7 mask order issued by Justice, 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.

The Stewarts claim their First Amendment right to free speech, their Fourth Amendment right to unreasonable search and seizure, and the 14th Amendment right to equal protection under the law were violated by Justice’s mask order.

The Stewarts also named a registered sanitarian with the Putnam County Health Department in their suit who threatened to shut down their restaurant if they did not follow the mask order.

The Stewarts had posted on Facebook their intent to not enforce the mask order on employees or customers.

In his ruling, Chambers wrote that Justice was within his rights under the West Virginia Constitution and state law to issue the executive order requiring masks indoors.

Chambers said the Governor’s powers in a state of emergency allow him to take action to protect the public during a public health emergency or pandemic.

“The Governor’s orders have a ‘real or substantial relation’ to a public health crisis,” Chambers wrote. “… The Governor’s measures are informed, based on science, and substantially related to the COVID- 19 pandemic.

“It is not the Court’s role to ‘usurp the functions of another branch of government’ in deciding how best to protect public health as long as the measures are not arbitrary or unreasonable,” Chambers continued. “… When elected officials ‘act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.’ It is clear that the orders are neither arbitrary nor unreasonable. Therefore, the Court finds that there is a rational basis for the Governor’s orders and that they bear a real and substantial relation to this public health crisis.”

Monday’s ruling and Tuesday’s order make the fifth court victory for Justice. Three previous attempts to challenge Justice’s executive orders have been rejected in Kanawha County Circuit Court by three separate judges over the last several months.

A federal judge in the U.S. District Court for the Northern District of West Virginia denied a motion Oct. 27 for an injunction filed by 12 Morgantown bars and companies challenging Justice’s temporary closure of bars in Monongalia County due to COVID-19 spread among West Virginia University students.

Those 12 bars and business owners have now grown to more than 30. They filed an appeal Tuesday of the Oct. 27 order by U.S. District Judge John Bailey with the U.S. Court of Appeals for the 4th Circuit. Their suit challenged Justice, the West Virginia Alcohol Beverage Control Administration, and the City of Morgantown over its own ordinances dealing with the coronavirus outbreak.

Bars have been open in Monongalia County since Oct. 13. Justice issued 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 until the Oct. 13 lifting of the order.

Wheeling attorney Martin 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.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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