502 F.Supp.3d 1057
S.D.W. Va2020Background
- Plaintiffs (Andrew & Ashley Stewart and Dinner’s Ready, Inc. d/b/a Bridge Café & Bistro) moved for a preliminary injunction/TRO to prohibit enforcement of West Virginia Governor’s mask mandate (EO 77-20) and raise challenges to the stay‑at‑home order (EO 9-20).
- EO 77-20 requires persons age 9+ to wear face coverings in confined indoor spaces and directs businesses to post signage and enforce the rule; EO 9-20 closed/non‑essential restrictions limited on‑premises dining.
- Plaintiffs rely in part on a news report paraphrasing the Governor as urging businesses to call police and suggesting obstruction charges for noncompliance.
- Court treated the filing as a request for a preliminary injunction, held a hearing, applied the Jacobson framework for public‑health orders, and denied the motion on Nov. 24, 2020.
- The record included public‑health affidavits showing COVID‑19 spread in West Virginia and expert declarations supporting mask efficacy and social‑distancing measures.
- The court dismissed state‑law claims under the Eleventh Amendment and found plaintiffs unlikely to succeed on federal claims (First, Fourth, and Fourteenth Amendments); irreparable harm and public‑interest factors weighed against an injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Jacobson / likelihood of success on merits | EO 77‑20 and EO 9‑20 are unrelated to public health or are arbitrary and thus unconstitutional | Orders are rationally related to preventing COVID‑19 spread based on public‑health expertise and data | Jacobson applies; orders have a real/substantial relation to public health; plaintiffs unlikely to succeed |
| First Amendment (mask wearing as expressive conduct; vagueness) | Refusal to wear masks is political/symbolic speech; order is content‑based/vague | Mask requirement is not inherently expressive; at most a content‑neutral time/place/manner restriction serving significant interest and narrowly tailored | Not expressive conduct warranting strict scrutiny; order passes intermediate scrutiny; not unconstitutionally vague |
| Due process (procedural and substantive; intrastate travel; property interest) | Orders deprived businesses of property rights and freedom of movement without notice/hearing; intrastate travel right violated | No cognizable property interest in a generalized right to do business; restrictions are rational responses to a public health emergency | Procedural and substantive due process claims fail; plaintiffs not likely to succeed |
| Equal Protection (essential vs non‑essential distinctions) | State failed to distinguish by region and arbitrarily classified businesses | Distinctions between essential/nonessential and off‑premises dining are rationally related to reducing contagion | No irrational or arbitrary classification; equal protection claim fails |
| Fourth Amendment / enforcement statements at press conference | Governor’s statements compelled businesses to summon police and threatened searches/seizures | News report paraphrase does not show a legal mandate to compel reporting or criminalize failure to report; EO 77‑20 itself contains no such requirement | Press‑conference reporting insufficient to show a Fourth Amendment violation or state action justifying injunctive relief |
Key Cases Cited
- Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) (establishes deferential standard for judicial review of public‑health measures)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary‑injunction standard: likelihood of success, irreparable harm, balance of equities, public interest)
- S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Supreme Court concurrence invoking Jacobson in COVID‑19 context)
- Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) (limits federal suits on state law claims against state officials under the Eleventh Amendment)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content‑neutral time/place/manner restrictions)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (test for expressive conduct and limits on symbolic speech claims)
- Texas v. Johnson, 491 U.S. 397 (1989) (whether conduct is sufficiently expressive to invoke First Amendment)
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ("class of one" equal protection framework)
- Elrod v. Burns, 427 U.S. 347 (1976) (deprivation of constitutional rights constitutes irreparable harm)
- Saenz v. Roe, 526 U.S. 489 (1999) (components of the constitutional right to travel)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (analysis of executive action and forum restrictions)